S. 2(c)—The doctrine of merger contained in section 111 of the Transfer of Property Act is subject to section 2(c) which makes it inapplicable to leases created before the Act came into force.
Tajim Ali Vs. Saijuddin Khan (1954) 6 DLR 25.
S. 3—”Actionable claim” includes existing debts payable in future or assignments of benefits under contracts for the supply of future goods.
Kazi Abdul Ali Vs. Nurul Amin (1955) 7 DLR 406.
—The words “conditional or contingent” mean that in case of debts or benefits accruing conditionally or contingently the immediate right to recover by action does not arise until the condition has been fulfilled or the contingency has occurred. Ibid.
—The true test of determining the nature of the claim sought to be assigned should be to see that the claim when it does accrue partakes of the character of a debt or a beneficial interest in movable property not in the possession, either actual or constructive, of the claimant which can be recovered by an action. Ibid.
—Beneficial interest in movable property—Right to claim the benefit of a contract.
Right to claim the benefit of a contract for future delivery of goods sold is a beneficial interest in movable property’ within the definition of actionable claim and as such assignable. Ibid.
—A entered into a contract with B to do certain works; he also entered into a contract with C under which C agrees to finance A in the execution of his contract works on condition that his advances would be a first charge on the bills due plus certain interest.
Held: What A purported to assign was the right only to claim payment for works performed under the contract. This was not merely a right to sue for breach of contract but was an actionable claim. Ibid.
—Attestation—Personal acknowledgement of signature: A personal acknowledgement of signature or mark as regards the execution of a deed by an executor within the meaning of the section may be either express or may even be inferred from conduct and it is sufficient if it is an acknowledgement of the execution of the deed.
Hari Kissan Pandey Vs. Nageswari Debi (1956) 8 DLR 65.
—Valid attestation: It is sufficient for valid attestation, if the attesting witnesses received acknowledgement from the executants of the deed that he put his signature or mark on the deed though the attesting witnesses themselves did not see him do it. Ibid.
—Registration is notice when the document is compulsorily registrable.
The doctrine of constructive notice by reason of registration applies only in the case of documents which are compulsorily registrable.
Nagendra Chandra Vs. Purameswar Roy (1957) 9 DLR 476.
Constructive notice
—Notice of registration of sale deed is a constructive notice unless proof is given to show that there was no such notice. Ibid.
—Whatever is notice enough to excite the attention of a man of ordinary prudence and called for further enquiry is, in equity, notice of all facts to the knowledge of which an enquiry suggested by such notice and prosecuted with due diligence would have led.
Dula Mia Vs. Haji Md. Ibrahim (1956) 8 DLR 616.
—Registration a constructive notice.
Hochenaddi Sk. Vs. Esmail Sikdar (1957) 9 DLR 294.
—A registered transfer amounts to a notice.
Jamini Mosahar Vs. Md. Majibar Rahman (1953) 5 DLR 22.
—The Transfer of Property Act not being in force in the region formerly known as the Punjab, the state of the law even after the 1927 amendment of section 3 remains the same, viz, that registration by itself does not amount to notice; the question of notice is one of fact to be determined on the circuinstances of each case. 1956 PLR (Lah) 1840.
—Where licensee is permitted to erect permanent structure and thereafter allowed to continue to enjoy the same—License becomes irrevocable. A mud-wall hut is a permanent structure.
Md. Ahsanullah Vs. Etwari Mia (1962) 14 DLR 776.
—“A person is said to have notice”— When duty to make enquiry is imposed on purchaser of property having tenants on it.
It was contended that if a tenant be in possession of land which is transferred it is the duty of the purchase& to make an enquiry from the tenant as to the nature and incidents of his title.
Held: Immovable property in a town or an agricultural estate may have hundreds or even thousands of tenants on it. ft cannot be the duty of a person who purchases large property to make an inquiry from every one of the tenants of the property as to any agreements relating to the property which he may possess.
A duty to make enquiry would arise only if there be some circumstance which puts the purchaser on enquiry. That tenants are in possession of the property which is purchased is not a fact which by itself will put the purchaser on enquiry, for this may be and will probably be the normal incident of the property purchased. Property may be in the possession of occupancy tenants, or it may consist of only the rent-receiving interest.
Possession which is prima fade lawful does not call for an enquiry. If, however, a person was in possession without any apparent title, or if the explanation given about the title of such person by the vendor was unsatisfactory there would be good grounds for making further enquiry. The purchaser cannot be penalized unless he has somehow failed in his duty and his duty would not arise unless there is something in the circumstances which puts a person of ordinary prudence on enquiry.
Abdur Razzak howlader Vs. Sk. Muhammad Shafi (1962) 14 DLR (SC) 119.
—An interest created under an agreement for sale of an immovable property does not fall within the definition of “actionable claim.”
“Actionable claim’ as defined in section. 3 of the Transfer of Property Act mean any claim to an unsecured debt or any beneficial interest in any movable property.
Purchase of any interest in any actionable claim is prohibited under this section when the purchaser is a judge, lawyer or an officer of the Court.
Ayaz Bahadur Vs. Abdus Sobhan (1978) 30 DLR 16.
S. 6—Property of any kind may be transferred.
A right to the reconveyance of immovable property, being ever so much more solid than a right of co-entry, should be treated as property. 1952 PLR (Lah.) 196.
S. 6(a)—Transfer of expectancy
Dispute relating to land between mother, stepmother and sister of last male owner on the one side and reversioner on the other—Parties not sure as to their respective shares—Compromise deed executed to avoid further litigation and to put an end to doubts—Deed, not invalid as transfer of expectancy. (1951) PLR (Lah.) 293.
Section 31, 42A
Making the Rule absolute in part directing to prepare the record of right of the case property in the name of the original owner and record the names of the writ petitioner respondents as forcible possessors in the remark column. Mst. Komla Begum vs. Md. Sha- hab Ali (Md. Abdul Matin J) (Civil) 7 ADC 557
S. 35—Doctrine of election—The beneficiary must give effect to the instrument as a whole.
The foundation of the doctrine of election is that a person taking benefit under an instrument must also bear the burden imposed by it and that he cannot take under and against the same instrument. It is, therefore, a breach of the general rule that no one may approbate or reprobate. The doctrine is based on intention to this extent that the law presumes that the author of an instrument intended to give effect to every part of it.
Md. Kader Ali Vs. Lokman Hakim (1956)8DLR 112.
S. 40—Sale by mortgagor of equity of redemption—Vendee covenanting to reconvey to vendor mortgagor partition of property after redemption—Vendor-mortgagor subsequently selling his right to reconvcyance also to vendee—Earlier sale successfully pre-empted—Pre-emptor selling his rights under the pre-emption decree to mortgagee— Covenant to recovery, though personal, held nevertheless, to be annexed co-ownership of land. 1952 PLR (Lah) 196.
Ss. 40, 54 and 130—Even a benamder can maintain a suit for reconveyance in place of the principal.
In some decisions it has been opined that by express or implied terms in the agreement between the parties this right may be limited within the family of the promisee. Therefore, in the present case in the absence of even such limitation in the agreement the right of rcconvcyancc was assignable and the same was rightly and validly assigned to the plaintiffs. As such the plaintiffs have locus standi to institute the Suit for specific performance of contract against the original vendee.
Seru Mia. Vs. Fajilatennessa & ors. (1979) 31 DLR 159(160).
—Right of reconveyance of immovable properly is an actionable claim in the vendor which can be transferred legally.
Seru Mia Vs. Fajilatennessa & ors. (1979)31 DLR 159.
—When section 130 of the Transfer of Property Act is read with sections 40 and 54 of that Act there remains no doubt that the right of reconveyance of immovable property though not an interest in the land, is an interest very much annexed to the ownership of the land; and this right is an actionable claim in the vendor which is transferable.
Seru Mia Vs. Fajilatennessa & ors. (1979) 31 DLR 159.
—A right under a contract of sale or contract of reconveyance, for all practical purposes, subject to the limitations put under sections 40 and 54 of the Transfer of Property Act, stands at par with “equitable estate” of the vendee under a contract of sale of immoveable property. This right though not an interest in the land, is very much annexed to the ownership of land and this ‘right’ is transferable, assignable.
Seru Mia Vs. Fajilatennessa & ors. (1979) 31 DLR 159.
S. 41—Transfer by ostensible owner.
—The party relying on the section must establish facts which entitle him to the benefits of the rules laid down in the section.
Nazir Ahmed Vs. Benoy Bhusan Saha (1956)8 DLR 159 (266 rt.h.col).
—Real owner, when allows another to hold as the owner of an estate to recover from the purchaser of the pretended owner.
Hamidulla Talukdar Vs. Muslim Khan (1956)8 DLR 606 (608 rt.h.col.)
—Unless he cannot overthrow that the purchaser by showing either that he had directed notice or something which amounts to constructive notice of the real title, or that there existed circumstances which ought to have put him on an enquiry, which if unsecured would have led to a discovery of it, the real owner has no remedy against the purchaser.
Habibullah Talukdar Vs. Muslim Khan (1956) 8 DLR 606 (608 rt.h.coi)
—Transferee from the ostensible owner—When his interest protected.
The husband continued to possess the suit land after settling it to his wife and subsequently the husband sold the same land to X.
Section 41 of the Transfer of Property Act makes it incumbent on the transferee to act in good faith and to take reasonable care to ascertain that the transferor had power to make the transfer. It is obvious that the first step which the transferee is expected to take is to search the registration office to ascertain what transfers, if any, had been made by the transferor. The transferee is not entitled to the benefit of section 41 of the Transfer of Property Act if he or she fails to do so.
Hassan Ali Vs. Azmauluddin (1962)14 DLR 392.
Bonafide transferee—A bonafide purchaser for value without notice of the alleged contract for reconveyance is protected under. section 41 of the Transfer of Property Act.
Tazal Haque Vs. Md. Affan (1965) 17 DLR 613.
—Vendee—When may make enquiries—True owner’s possession—Vendee must enquire as to nature of possession— Protection under the section is lost by negligence.
If there are no circumstances disclosing any reason for going behind the revenue entries, then the vendee is protected if he has bonafide acted on the entries appearing in the revenue records. The authorities do not seem to lay down any principle on the question of implied consent of the true owners; but it is clear that this would be a question to be decided on the facts of each case. It is also clear that the mere entry of the name of the ostensible owner in the revenue record would not by itself amount to implied consent on the part of the true owner, as required by section 41 of the Transfer of Property Act. Therefore, the fact that the true owners had all along been in possession of land was, a sufficiently strong circumstance for the vendees to be put on their guard and to require them to make further inquiries beyond the entries made in the revenue records. This they failed to do with the result that this requirement of section 41 was also not fulfilled by them. Ilahi Bakhsh Vs. Hassan Khan, PLD 1966 (W.P.) Lahore 654. (Anwarul Haq, J.)
Section 42A
Making the Rule absolute in part di- recting to prepare the record of right of the case property in the name of the original owner and record the names of the writ petitioner respondents as forcible possessors in the remark col- umn. Mst. Komla Begum vs. Md. Sha- hab Ali (Md. Abdul Matin J) (Civil) 7 ADC 674
Section 43
Salamatullah was a monthly tenant in respect of a shop in the building under Bazlus Sobhan a lawyer of Feni. For arrears of rent Bazlus Sobhan filed Title Suit No. 130 of 1980 in the 2nd Court of Munsif (now assistant Judge), Feni for ejectment of Salamatullah Majumder. Zohiruddin Majumdar vs. Salamatullah being (M. M. Ruhul Amin J) (Civil) 6 ADC 794
S.43—House by mistake transferred to M. when it was not in compensation pool—House subsequently included in pool—Transfer to M is validated by inclusion.
The principle embodied in s.43 applies to transfer under Act XXVIII of 1958. When the property was put in earmarking due to a mistake in the record of the Deputy Rehabilitation Commissioner, the property did not form part of the compensation pool and by mistake it was transferred to M. Subsequently the property was released by the Central Government on 20.6.1960 and it became a part of the compensation pool. Thus the transfer already affected in favour of the petitioner became a valid transfer on the 20th of June 1960.
Mumtaz Sultana Vs. Settlement & Rehab, Commissioner, PLD 1964 (W.P.) Lahore 388 (Rizvi, J).
—Transferor having doubtful title at the time of transfer—Interest acquired subsequently passes to transferee— Principle of feeding the estoppel.
Under s.43 a transfer by a person of property which he represents and which he is entitled to transfer, but in which his title is doubtful or lacking, will operate on any interest which he may acquire subsequent to the transfer in that property so that the transferee becomes the owner of that interest. Therefore, if at the time when the film was transferred by the transferor he did not have any rights in the film but the rights were acquired later on, they would pass to the transferee when they are so acquired.
S.Sibtain Fazli Vs. Star Film Distributors PLD 1964 Suprem Court 337=1 6 DLR SC 198. (Kaikaus. J).
Doctrine of feeding the grant by estoppel: The doctrine of feeding the grant by estoppel which appears as the solitary illustration to section 115 of the Evidence Act and in section 43 of the Transfer of Property Act is based on the ground that if a person, for value received, conveys what he does not own but subsequently he acquires the title, which he conveyed, then the transferee can enforce the conveyance against him.
Ghulam Md. Shah Vs. Fateh Md. Shah (1955) 7 DLR (FC) 70.
—Estoppel, application and doctrine of
Section 115 of the Evidence Act is not the only section which deals with title by estoppel but there is one other section, namely, section 43 of the Transfer of Property Act which deals with the same thing. However, there is a distinguishing feature. According to section 43 of the Transfer of Property Act, erroneous representation is enough, but under section 115 of the Evidence Act it must be made intentionally and falsely. Where there is no proof of erroneous misrepresentation and the real state of things were known to both the parties, no question of estoppel arises. 6 PLR (Dac) 181.
The section applies to case of fraudulent or erroneous representation made by transferor to transferee. 1951 PLR, (Lah) 307.
—Transferor’s right to the property accruing to him subsequent to his date of transfer endures to the benefit of the transferee.
Musammat Khaleda Razia Khan Vs. Mahtabuddin Chowdhury (1978) 30 DLR (SC) 27.
—A nadabi-deed may be taken to be piece of evidence to strengthen the plaintiff’s claim of title on the principle of feeding the grant by estoppel. Ibid.
—Feeding the estoppel—Ingredients of the principles of feeding the estoppel.
What are required for application of the provision provided in s.43 regarding feeding the estoppel are (a) erroneous or fraudulent representation by a person, having had no title or having imperfect title to certain immovable property that be was authorized to transfer such property; (b) actual transfer of the said property by him for a consideration; Cc) subsequent acquisition of title or any interest by the said person in the said property. On the fulfillment of these conditions the transfer made by the unauthorized person would operate on the title or interest which has been acquired by the said person at the option of the transferee.
Abu Saber Aziz Mahammad & ors. Vs. Govt. of Bangladesh & ors. (1979) 31 DLR (AD) 218.
—It may he said to have been ultra vires of the Government Officer in the sense that the lands in question having been not the Government property, the Government officers were not authorized to transfer the same and no title accrued in favour of the plaintiffs on the basis of such transfer. But the Government having subsequently acquired title to the said transferred lands, there is no bar to the application of the law of feeding the estoppel.
There is no statutory provision suspending the law of feeding the estoppel and creating a bar to the claim of the property on the basis of the said law. Ibid.
—Schedule B lands being accretion to schedule A lands before the Government settled A schedule lands to the plaintiff the latter acquired no right or interest in B schedule lands by virtue of his getting A schedule lands from the Government. Ibid.
S. 44—A member of an undivided family can maintain a suit for injunction restraining a stranger- purchaser of a portion of a joint property from taking possession of the property.
Md. Habibullah Vs. Pranballav (1957)9 DLR 119.
—Instead of availing himself of that right (that is, his bringing of a partition suit for a specific possession of share) if such purchaser tries to take forcible possession a co-sharer can bring a suit for injunction restraining such a transferee from entering into possession of the undivided dwelling house. Ibid.
—With reference to the Partition Act it has been held that the term dwelling house’ includes not only the structure of the building but also adjacent buildings, curtilage, courtyard, garden or orchard and all that is necessary to the convenient occupation of the house; and that the phrase undivided family is not limited to Hindus but includes any group of persons related in blood who live in one house under one head, and that it applies if they are undivided qua the dwelling house which they own. The same construction applies to the words used in this section and it is not necessary that the family should have constantly lived in the dwelling house. Mulla’s Transfer of Property Act : (2nd edition) page 200.
S. 46— “What is reasonable time” in each case depends upon the facts and the circumstance of the case. Fourteen years time to the parties when appears reasonable the Court will not hold otherwise.
Abdul Quddus Vs. Anjuman Khatoon (1984) 36 DLR 312.
—Where no time is fixed for performance of a contract it should be performed within reasonable time.
Section 29 of the Contract Act provides that agreement, the meaning of which is not certain, or capable of being made certain, are void. None of the illustrations (a) to (1) of that section suggests that if the time for performance of contract is not fixed the contract would be void for uncertainty. On the other hand, section 46 of the Contract Act provides that where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time. Ibid.
S. 47—Principle underlying section 47 has no application where transfer of the immovable property has been affected by person who had no such right at the time of transfer.
Mst. Khaleda Rajia Khanun Vs. Mahtabuddin Chowdhury (1978) 30 DLR (SC) 27.
S. 52—Lis pendens—Possession during the pendency of the suit by a party cannot alter the rights of the parties.
The possession which a party to the suit obtains during the pendency of the suit instituted by the plaintiff cannot alter the rights of the parties in the suit, for those must be determined according to the position prevailing on the date of the institution of the suit.
Hochenaddi Sk. Vs. Esmail Sikdar (1957) 9 DLR 294.
—Where a transfer is hit by section 52 of the Transfer of Property Act, the transferee is not entitled to hold his title against a party to the suit sought to be affected by the transfer; for a suit for specific performance of a contract operates as liss pendens.
Atar Ali Vs. Abed Ali (1953) 5 DLR 470.
Lis pendens—The word “contentious” (which was in the section before the amending Act 20 of 1929) in section 52 of the Transfer of Property Act refers to the origin and nature of the plaintiff with reference to (his prosecution. The doctrine, therefore, becomes effective from the very moment of the institution of the bona fide suit which is in no way collusive.
Sachindra Kumar Basu Vs. Sreenath Pal (1954) 6 DLR 550.
—If a suit is dismissed for default and then it is restored, the order of restoration relates back and a transfer after dismissal and before restoration is subject to the doctrine of us pardons. Ibid.
—The decree-holder in the mortgage decree having put the decree into execution, the judgment- debtors applied under section 36 of the Bengal Money Lenders Act to reopen the decree. The decree was re-opened and a new preliminary decree was passed making the decretal amount payable in several installments. Some time before the passing of this preliminary decree, the landlord auction-purchased the holding comprising the mortgage lands at a rentsale.
The judgment-debtor having defaulted in payment of the installment dues a final decree was passed and the decree was thereafter put into execution. The landlord, who became the owner of the equity of redemption and was not made a party either to the preliminary decree or to the final decree, put in an objection under section 47, Civil Procedure Code saying that execution could not lie against him because he was not impleaded in the suit or the proceedings.
Held: The landlord objector having purchased the property during the pendency of the suit, he could not be regarded as necessary party to the suit. He becomes interested in the equity of redemption during the pendency of the suit and hence the Doctrine of lis pendens under section 52 of the Transfer Property Act must operate as a bar to his plea.
Debendra Ch. Saha Vs. Nabin (1955) 7 DLR 186.
Involuntary alienation—It is now well settled that though section 52 itself may not apply to involuntary alienation nevertheless the principle of lis pendens applies to such alienation. Ibid.
—A transfer pendente lite affecting the rights of the other parties to the suit is expressly barred by section 52 of the Transfer of Property Act.
Aminul Huq Vs. SM Ibrahim (1955) 7DLR 535.
—Principle of lis pendens applies in cases of involuntary alienation, though the said section may not apply.
State Bank of Pakistan Vs. Khaledar Ma & others (1962) 14 DLR 734.
Lis pendens—Purchase in a court-sale while a partition suit was pending—Purchaser’s purchase is hit by the doctrine of lis pendens.
Sree Nath Paul vs. Sac hindra Kumar Bashu (1968) 20 DLR 97.
—Transfer of land during the pendency of partition suit is hit by the doctrine of lis pendens.
A partition Suit is a suit in which the right of a party in a property held jointly with others is determined and a Pew and exclusive right is created in favour of a party. Partition suit is a Suit contemplated in section 52 of the Transfer of Property Act.
In this case the petitioners were inducted into the suit land during the pendency of the partition suit without the concurrence of other co-owners and the person who inducted them into the premises has not been given land which is possessed by the petitioners but he has been allotted a different saham. Co-sharer who has been allotted the saham which is in possession of petitioners is entitled to get possession of the saham allotted to him free from all encumbrances. To saddle him with encumbrances created during the litigation would render the principle of doctrine of lis pendens nugatory.
Wajed Ali Vs. Sudhi Chandra Das (1968) 20 DLR 513.
Principles of Lis pendens—Its application limited to immovable, property—In matters of conjugal relationship, it has no application.
Nelly Zaman Vs. Giasuddin Khan (1982)34 DLR 221.
—The word “transferred” in s. 52, TP Act, contemplate s transfer by sale, gift, mortgage, lease and exchange.
The word ‘transferred’ means such transfers as are contemplated by the Transfer of Property Act such as, sales, gifts, mortgages, leases and exchanges.
Md. Abdur Rouf and others Vs. Ahmuda Kkatun and others (1981) 33 DLR (AD) 323(324).
—A transfer of the land in suit being the subject matter of the pending Suit is hit by the doctrine of (is pendens and, as such, such a transfer is not valid in law. And, consequently, such a transferee cannot apply under Or. 1, r. 10(2), CP Code to be impleaded as a party to the suit.
Jamaluddin Vs. Rabeya Begum (1980)32 DLR 63.
—Transfer of suit land by third party pending suit—Section does not apply.
Where the suit land was transferred pending the Suit by a person who was not a party to the suit, the section does not apply to the case.
Abdul Hakim Vs. Ali Muhammad PLD 1965 AK 1(BB). (Hamid, CJ).
Ss. 52 and 2—Transfer governed by Muslim Law—Doctrine of us pendens does not apply—Donee under Muslim Law may transfer property pending suit for resumption of gift by donor.
Section 2 of the Transfer of Property Act lies down that nothing in the Second Chapter of the Act shall be deemed to affect any rule of Muslim Law. Section 52 occurs in Chapter II of the Transfer of Property Act. It is clear, therefore, that if there is a rule of Muslim Law on the point under discussion here, then ,the principle embodied in section 52 of the Transfer of Property Act cannot be invoked. Therefore, where the donor acting under Muslim Law had delivered the possession of the property gifted to the donee, but subsequently he brought a s i for resumption of the property by revoking the gift—
Held: The donees were competent to alienate the property in dispute during the pendency of the suit, as there was no order of the Court to the contrary. The gift could not, therefore: be revoked by the donor for the reason that the thing given had passed out of the donees’ possession by sale, a sale which was not hit by section 52 of the Transfer of Property Act.
Ghulam Qadir Vs. Ghulam Husain, PLD 1965 (WP) Lahore 200 (Anwarul Haq). J).
S. 52—Transfer of assets of firm pending suit for declaration that firm stands dissolved—Transferee acquires no right or interest in property.
Where a suit was pending for a declaration that a firm had been dissolved and also for rendition of accounts and the property of the firm was transferred pending the suit. It was held that the transferee of the property did not acquire any right or interest in the property.
Usman Vs. Haji Omer PLD 1966 (SC) 328 (Hamoodur Rahman, J.)
Section 52
The petitioners' predecessor, Mohiud- din Khaled as plaintiff filed Title Suit No.105 of 2001 in the Court of Joint District Judge and Commercial Court No.2, Dhaka for partition. After the death of Mohiuddin Khaled, the petitioners were substituted in the suit. The present respondent Nos. 1 and 2 (hereinafter referred to as the appli- cants) filed an application in the suit under Order I, rule 10(2)(4) of the Code of Civil Procedure for adding them as defendants claiming that they purchased the suit land from one A.T. Sanowar Kader, the rightful owner by two registered kabalas being Nos.2997 and 4436 dated 06.08.1997 and 29.10.2000 respectively. The learned Joint District Judge by his order dated 21.09.2002 rejected the prayer on the ground that the applicants purchased the property during the pendency of the suit. Although the doctrine of Lis pendens has not been mentioned in the order passed by the learned Joint District Judge, in the back of his mind the said doctrine worked as it appears from a reading of the order rejecting the application. Challenging the said order of rejection of the prayer for ad- dition of party the applicants filed Civil Revision No.6576 of 2002 be- fore the High Court Division. A Divi- sion Bench of the High Court Division which heard the revision by the impugned judgment and order made the Rule absolute adding the applicants as defendants in the suit, hence this peti- tion for leave to appeal. Mohiuddin Khaled vs. Md. Ismail Hossain (Md. Abdul Wahhab Miah J) (Civil) 8 ADC 1005
S. 53A—Specific performance of the contract—Bonafide transferee.
In a Suit for specific performance of a contract for sale or lease a subsequent ‘bona fide’ transferee for value without notice of original contract is an interested party; for a subsequent transferee for value, who has paid his money in good faith without notice of the original contract is entitled to hold his title against the plaintiff in a Suit for specific performance of the contract.
Atar Ali Vs. Abed Ali (1953) 5 DLR 470.
—Unregistered document.
An unregistered document could be received in evidence in a Suit for specific performance.
Dula Mia Vs. Haji Md. Ebrahim (1956)8 DLR 6(6.
—The principle of part performance embodied in section 53A can only be pressed into service as a shield by a defendant to protect his possession of property which has been conveyed to him for consideration but of which the legal title has not vested in him owing to some formal defect like lack of registration of the instrument of transfer. Where the contract of transfer was ab initio void the principle has no application. 1951 PLR (Lah) 307.
—An agreement of sale followed by possession No transfer of interest in the property.
In an agreement of sale followed up by possession to the purchaser apart from the provisions of section 53A T.P.Act., the document itself does not constitute a transfer of any interest in the property.
Enayet Hossain Vs. Member, Board of Revenue (1960)12 DLR 466.
—A person who has taken possession under an unregistered lease which under section 107 of the Transfer of Property Act is required to be registered, can protect his possession on the plea of part performance under section 53A of the Act, provided he fulfils the conditions laid down therein. If a person has failed to pay the rents due it can not be said that he has fulfilled his part of the contract.
Girindra Chandra Vs. Kumud Behari (1952)4 DLR 623.
—Proviso to section 49 of the Registration Act allows an unregistered deed which is required to be registered to be used as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract for the purpose of section 53A.
Girindra Chandra Vs. Kumud Behari (1952) 4 DLR 623.
—In a contract of sale when transferee paid the full consideration money and got possession of the disputed land, he is entitled to the protection of sec. 53A of the Transfer of Property Act and Art, 113 of the Limitation Act has no application to such a claim of the transferee.
The right conferred by this section is available for a defendant to protect his possession. For the purpose of protecting his possession the section operates as a bar to the plaintiff asserting his title. In the facts of the present case the plaintiff is barred under section 53A from asserting his title and he is not entitled to get a declaration that he has his right and title in the disputed properties.
Abdul Gani Khan Vs. Din Bandu Adhikari (1962) 14 DLR 663.
—Property means the right in the property transferred and the remedy of the transferor is barred only with respect to the right that stands transferred by the deed. The provision of section 107 is not in conflict with that of section 53A of the Transfer of Property Act nor is the provision of section 17 of the Registration Act. Provision of section 53A does not create right or interest in violation of provision of section 107 and section 17, Registration Act.
Abdullah Bhai Vs. Ahmad Din (1964) 16 DLR (SC) 169.
—Section 53A of the Transfer of Property Act makes an exception in favour of the transferee in possession in respect of a document which requires registration.
Section 49 of the Registration Act no doubt, provides that if a document, which is compulsorily registerable, is not registered, then such a document does not affect any rights in the property dealt with under such a document. But section 53A of the Transfer of Property Act makes an exception to this and provides that where a person obtains possession of or continues to remain in possession of a property under a document in writing which, though compulsorily registrable, has not been registered, then neither the person transferring the property nor anyone claiming under him shall be entitled to enforce against the transferee or any person claiming under him any right in respect of that property.
Mst. Ghulam Sakhina Vs. Umar Bakhsh (1964) 16 DLR (SC) 38
—Deed (unregistered) of exchange, missing—Its terms sought to be proved by witnesses who never read its contents—Secondary evidence inadmissible.
Mokim Mondal Vs. Ali Miah Pradhan (1966) 18 DLR 386.
—Conditions for entitlement of the benefit of part performance.
Under section 53A of the Transfer of Property Act a person in order to entitle himself to the benefit of the doctrine of part performance must show, inter alia, that the contract involved has been reduced to writing and signed by the person making the contract or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
Mokim Mondal Vs. Ali Miah Pradhan (1966)18 DLR 386.
—Agreement of purchase accompanied by possession.
Agreement of purchase followed by possession in part performance of the contract for sale does not make the person in possession of such property as one in unlawful possession and therefore, such person has prima facie right over the property, if he can clearly establish his possession over the property.
Kazalul Hussein Chowdhury Vs. Dy. Custodian, Enemy Property (1970) 22 DLR 345.
—Protection under s.53A, Transfer of Property Act available to transferee both as plaintiff as well as defendant in suit by or against him to shield his title to property—Lessee in possession—Lease deed unregistered—Lessee, held, entitled to use unregistered lease as shield to prevent transferor from enforcing any right except those arising under such lease.
The Pakistan Employees Co-operative Housing Society Ltd. (Karachi) Vs. Msi. Anwar Sultana (1969)21 PLD Karachi 474.
—Relief obtainable under section 53A is not only available, by way of defense, to a defendant but can equally be invoked by a plaintiff where circumstances entitle him to claim the same.
If the transferor, without taking recourse to law Courts, becomes aggressive and tries to dispossess the transferee in possession by force, it does not seem to be in consonance with good reason that the transferee in possession should not be able to prevent the transferor from committing aggression upon the property in question and protect his own possession by invoking the principle of section 53A of the Transfer of Property Act, by himself instituting a Suit as the plaintiff and obtaining the necessary restraint order against the would-be aggressor in the said suit.
Mrs. June Ferguson Vs. Ameenur Rasheed Chaudhury (1973) 25 DLR 1.
—Interest visualized in s.53A TP Act is neither a protected interest nor an encumbrance (within the meaning of these terms in sections 160 and 161 B.T. Act) and therefore an auction purchaser in a revenue sale gets the property free from any interests created under section 53A.
Julfu Molla Vs. Noab Ali Sarkar (1975)27 DLR 441.
—Right created u/s 53A—It is not an interest under clause (g) of section 160 of the Bengal Tenancy Act—Interest contemplated u/s 161 B.T. Act is a subordinate interest whereas under section 53A what the tenant intended to do was to transfer his whole interest. The kabala was not in limitation of the tenant’s interest but was a transfer of his entire interest. An interest under section 53A cannot be an encumbrance.
Julfu Molla Vs. Noab Ali Sarkar (1975) 27 DLR 441.
—Applicability of section 53A—Whether right under sec.53A is a legal right or an equitable or a contractual right.
The question, which now arises is whether the Government of Bangladesh can completely ignore the written agreement under which the appellant entered into the possession of the property concerned on part payment of the consideration money.
Under Article 4 of P0 16 of 1972 the industrial unit concerned vested in the Government which acquired the right to administer, control, manage and dispose of by transfer or otherwise the said properties in accordance with the provisions of said Order.
Buxly Paints (Bangladesh) Ltd. Vs. Bangladesh (1979) 31 DLR (AD) 266.
—Under the general law the Govt. which has stepped into the shoes of the Pakistani company, the original owner of the industrial unit, cannot exercise its right of possession as against the Bangladesh company by virtue of section 53A of the Transfer of Property Act which creates a positive bar to the exercise of any right including that of taking possession in view of the agreement for sale of the industrial unit between the Pakistani Company and the East Pakistani Company, in part performance of which the East Pakistan Company was inducted into possession and as such the Govt. is not entitled to interfere with the possession of the appellant Company in respect of the industrial unit in its possession.
Buxly Paints (Bangladesh) Ltd. Vs. Bangladesh (1979) 31 DLR (AD) 266.
—In Bangladesh when such right arising from part performance of a contract has been given a positive statutory shape in section 53A of the Transfer of Property Act, such right issues from a positive legislative enactment and is not founded merely on equity or a contract.
So long as the agreement remains in force and the party in possession is agreeable to perform his part of the contract, his possession cannot be interfered with by a party to the said contract or any person claiming under the said party.
Buxly Paints (Bangladesh) Ltd. Vs. Bangladesh (1979) 31 DLR (AD) 266.
—Contract by part performance, must be evidenced by writing signed by the person who contracted to transfer.
Mehar Khatun Vs. Sarat Kumar Kanungoe (1984)36 DLR (AD) 217.
—Section 53A of Transfer of Property Act affords protection to a transferee in possession of immovable property as against the transferor or any person claiming under him when under a written contract the transferee in part performance of the contract takes possession of the property or any part thereof although the contract though required to be registered has not been registered or where there is an instrument of transfer, the transfer has not been completed in the manner prescribed thereof by the law for the time being in force.
Joyanta Bijoy Chakraborty Vs. Gopesh Chandra Chakrabarty (1983) 35 DLR 319.
—Defense under the section not set up in suit by ‘proforma’ defendant—Cannot raise plea during execution proceeding.
Where the protection under s.53A was first raised as a defense in the execution proceedings by a proforma defendant in the suit.
Held: If she had any such right, the same should have been set up as a defense in the suit itself. That not having been done, she is debarred from claiming the said protection now after a decree has been passed against her as well for specific performance. The decree of specific performance is conclusive and binding upon the appellant and she cannot be allowed now in the execution of the said decree to have the decree re-opened and the question reagitated.
Birgis Jahan vs. Mohd. Hasan PLD 1964 Dacca 202 (DB). (Rahman, J).
—Land sold by evacuee’s years before. partitions—Custodian can only claim balance of sale price—Cannot claim such property.
Where the evacuees had sold land to the locals long before partition, the only right which the evacuee heirs of the vendor possess in the land in question was the right to receive the balance of the sale price, and not the right to dispossess the petitioners. It is only this right that must be deemed to have vested in The Custodian under section 7 of the Act and no more. Viewed in this light there is no conflict between section 53A of the Transfer of Property Act and the relevant provisions of Act XII of 1957. Therefore, the vendees have a right to keep the land and the Custodian can only claim the balance of the sale price.
Muhammad Vs. Custodian of Evacuee Property, PLD 1962 (WP) Karachi 312 (DB). (Anwarul Haq, J.)
—Oral agreement of transfer— Transferee in possession prior to suit but not in possession at time of suit—Benefit of section not available.
The first essential requirement mentioned in the section is “where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with certainty’ In the present case, there is no writing at all signed by the transferor or on his behalf. The second requirement mentioned in the section is that “the transferee has in part-performance of the contract taken possession of the property or any part thereof or the transferee being already in possession, continues in possession in part-performance of the contract and has done some act in furtherance of the contract”. In the present case, although the defendant-appellant did come into possession of the disputed property for some time, yet at the time of the institution of the suit the appellant was admittedly out of possession. Such being the case even the second requirement laid down in the section is not fulfilled. For these reasons, section 53A is clearly not attracted to the case.
Noor Mohd. Vs. Ghulam Masih Gill PLD 1965 (WP) Baghdad-ul-Jadid 1. (Anwarul Haq, J).
—A plot obtained by exchange—Part performance of agreement of exchange— Benefit of s. 53A available to transferee.
Where the plot was obtained in exchange for another plot and some structures were built on it in part-performance of the agreement of transfer. The transferee can enforce the specific performance of the agreement of transfer and take benefit of the provisions of s.53A.
Usman Vs. Haji Omar PLD 1966 SC 328. (Hamoodur Rahman, J).
—Scope—Section does not create rights for making a claim—Only provides defense for transferee.
Section 53A of the Transfer of Property Act does not create a right for making a claim but only affords a defense against the transferor if he attempts to enforce a right other than one that is provided in the contract, in respect of the property of which the transferee is in possession.
Anwar Sultana Vs. Pak. Co-op. housing Society Ltd., PLD 1964 (W.P.) Karachi 116 (Qadeeruddin,J.)
—A sale of land by unregistered. deed without delivery of possession—Subsequent sale by registered deed—Subsequent sale has precedence.
Where the previous sale of land was by an unregistered deed and possession was not delivered in consequence thereof and subsequently the same land was sold to another person by a registered deed. It was held that the subsequent sale has precedence over the previous sale.
Pordil Khan Vs. Sufaid Gui. PLO 1965 (Pesh) 259. (Bashiruddin, J)
—Scope—Gives protection to transferee—Does not transfer title to property in the absence of registration.
All that section 53A, Transfer of Property Act, 1882 does is to protect the transferee against the transferor or any person claiming under him from enforcing any right in respect of the property notwithstanding the fact that the contract, though required to be registered, had not been registered or where there is an instrum net of transfer the same has not been completed in the manner prescribed thereof by the law for the time being in force. This protection is given to the transferee upon the fulfillment of the condition set Out in that section and upon the principle that equity looks on that as done which ought to & done. If the transferee is ready and willing to do all that he is required to do under the contract, it should not lie in the mouth of the transferor or any one flaming through him to plead absence of registration or compliance with other formalities to get out of his own obligation under the contract. This section nowhere professes to transfer the title to the purchaser.
PT Co-op. Housing Society Ld. Vs. Manzoor Ahmed PLD 1961 (WP) Karachi 53 (Faruqui, J).
—Transfer by unregistered deed where it should have been registered—Transferor cannot enforce any rights under the deed— Transferee may sue for specific performance of contract of sale.
Under section 53A, a person who had made a transfer of some property by means of an unregistered deed, when under the law the transfer should have been made by means of a registered deed, is debarred from enforcing any right in respect of the property if the transferee has in part performance of the contract taken possession of it. When a transferee by means of a document which has not been registered, though under the law that document was compulsorily registerable, comes to Court as a plaintiff and bases his claim on part performance of the contract of transfer, he is using the part performance of the contract as a shield and not as a sword as his object is only to defend his own title and not to attack the tide of anyone else. Therefore the transferee can sue for the enforcement of a contract of sale even when it is not duly registered.
Inayat Ullah Vs. Shah Muhammad PLD 1961 (WP) Lahore 372 =PLR 1961(2) WP 525(08) (Shabir, J).
—The vendor cannot take shelter behind the doctrine embodied in section 53A of the Transfer of Property Act. That provision is intended for the benefit of vendees alone so as to protect them against the vendors.
Manzoor Ahmad Vs. P & T Cooperative housing Society Ltd. PLD 1962 (WP) Karachi 476 (DB). (AnwarullIaq. J).
—Where the transferee has made part payment of the consideration and is already in possession he is entitled to the protection granted by this section.
Ghulam Hussain Vs. Ghulam Mohd, PLD 1964 BJ. 19 (UB). (Faruqui. J).
Section 53A- Where an agreement to lease is evidenced and the lessee is put in possession, there has been acceptance of salami and/or acknowledgment of receipt of money towards sale of possession, section 53A will be used as shield against the owner to oust the tenant. The lessee could defend the suit for ejectment. .....Banichitra Pratisthan Ltd. -VS- Bilkis Begum, [3 LM (AD) 46)
Section 53A, 54- The documents clearly show that a substantial amount of money was received on the plea for selling the possession of the space for shop premises. The tenants have given the right of transfer of possession subject to payment of transfer fee. This sale of possession is hit by section 54 of the Transfer of Property Act, sections 17 and 49 of the Registration Act, and section 23 of the Contract Act, but this does not mean that the tenants can be evicted treating them as ejectable tenant. They have acquired interests in the premises by reason of payment of money towards sale of possession and their interest is protected under section 53A...... Banichitra Pratisthan Lid. -VS- Bilkis Begum, [3 LM (AD) 46]
Section 53A- Confers no right on a party who was not willing to perform his part of the contract- It is well settled law that Section 53A of the TP Act confers no right on a party who was not willing to perform his part of the contract. A transferee has to prove that he was honestly ready and willing to perform his part under the contract. We do not find any reason for not granting specific performance in favour of Respondent Nos. 1 and 2. Hence, in the interest of justice and since the Respondent Nos. 1 & 2 are in possession of suit land for long time, we do not find any illegality with the reasoned judgment passed by the High Court in granting specific performance in their favour subject to paying of the sale consideration by them as per the present prevailing market value within six months from today. The appeal is dismissed with no order as to costs. ..... Shivaji Yallappa Patil VS Sri Ranajeet Appasaheb Patil, [5 LM (SC) 16]
Section 53A- It is well settled that the defendant who intends to avail the benefit of this provision must plead that he has taken possession of the property in part performance of the contract. Perusal of the written statement of the first defendant shows that he has not raised such a plea. Pleadings are meant to give to each side, intimation of the case of the other, so that, it may be met to enable courts to determine what is really at issue between the parties. No relief can be granted to a party without the pleadings. Therefore, it is not open for the first defendant/appellant to claim the benefit available under Section 53A of the T.P. Act...... Shyam Narayan Prasad -VS- Krishna Prasad, [5 LM (SC) 21]
Section 54- When the legislator alters the rights of parties by taking away or conferring any right of action It is now well settled that when the legislator alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is the general rule of the common law that the statute changing the law ought not, unless the intention appears with reasonably certainty to be understood as applied to facts, or events that have already occurred in such a way as to confer or impose or otherwise effect rights or liabilities which the law had defined with references to past events.
It is true that in terms of section 54 of the Transfer of Property Act, 1882, the transfer of immoveable property of the value of hundred rupees and upwards can be made only by registered instrument, whereas in terms of section 49 of the Registration Act, 1908, a document, which is required to be registered under the said Act, can operate to create any right, title or interest in any immoveable property, only if it is so registered. However, section 47 of the Registration Act, clearly lays down that a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. ... Muhammad Mansha VS Industrial Development Bank of Pakistan, [10 LM (SC) 25]
S 54—A contract of re-conveyance of a property does not create any interest to the property— Rule against perpetuity has no application to an agreement when such agreement does not create any interest in the land.
Abdul Quddus Vs. Anjuman Khatoon (1984)36 DLR 312.
—Registration not enough to pass title.
Where there is neither possession of the property alleged to have been sold, nor any proof of the payment of consideration mere registration of the sale-deed does not operate to pass title to the vendee. Ibrahim Vs. Sardar Ahmed (1955) 7 DLR (WP) 62.
—It cannot be laid down a general rule that mere registration of an instrument “without reference to other circumstance operates to transfer the property.
Ainuddin Vs. Samaddi Hajari (1955) 7 DLR 443.
—Where a deed of sale collusively created to defeat the title of the defendant by ante-dating the same to a date prior to the date of the execution and registration of the defendant’s document, it cannot be said that mere registration has the effect of transferring title.
Ainuddin Vs. Samaddi Hajari (1955) 7 DLR 443.
—Although under section 54 of the Transfer of Property Act a condition of re-purchase does not create an interest or charge on the immovable property concerned, it is a benefit annexed to the ownership of land, and unless the contract is induced by considerations which are personal to the vendor, it is assignable.
If it appears that the option is given as a matter of grace or favour it will be restricted to the vendor personally and will not be assignable but if it is not induced by any such consideration but in fact a part of the bargain the beneficial interest created by the contract is assignable. I PLR (,Dac) 349.
—According to this section, sale is a transfer of ownership in exchange for a price not in exchange for land, and there is abundant authority for the view that “price” in this context means” money”, not anything else. 1952 PLR (Lah) 196.
—Conveyance and contract of sale—Statements in a document which convert it into a sale-deed and not a contract of sale.
Enayet Hossain Chowdhury Vs. Member, Board of Revenue (1960) 12 DLR 466.
—If a vendor can convey a property without an instrument of sale-deed he can do it and can escape payment of stamp duty.
Enayet Hussein Chowdhury Vs. Member Board of Revenue (1960)12 DLR 466.
—An agreement for reconveyance of land is not a right in property.
Abdus Sattar Mallik Vs. Yunus Mallik (1960) 12 DLR 849.
—A sale may be complete even if the ingredients of section 54 not complied with.
The mere failure of the parties to comply with the requirements of section 54 of the Transfer of Property Act as to the manner in which the transfer should be made cannot alter the nature of the transaction intended to be entered into between the vendor and the vendee or affect the pre-emptor’s right in respect of it.
If the transaction amounts to a sale in fact then notwithstanding that it is not in the form prescribed by section 54 of the Transfer of Property Act the right of pre-emption will come into operation.
Abdul Karim Vs. Fazal Muhammad Shah (1967) 19 DLR (SC) 477.
—Agreement for sale of land binds the purchaser at Court sale with notice—the agreement for sale would bind the purchaser at a Court sale if he had notice of the agreement.
Mohiuddin Mollah Vs. Province of East Pak. (1962)14 DLR (SC) 112.
—A sale of immoveable property accompanied by an ekrarnama—In case of a sale
of immoveable property accompanied by an ekrarnama, for the rcconvcyance of the same property to the vendor, a subsequent purchaser of the vendor’s right, he being the successor-in-interest, is entitled to enforce the right of reconveyance against the original vendee.
Jalal Ahmed Vs. Thoraish Mia (1968) 20 DLR 80.
—Subsequent registration of Kabalas without payment of consideration money for curing defects of earlier lease deeds cannot be called sale-deeds and as such pass no title.
The plaintiff took bandabasta of the Suit property by registered lease deeds. But finding the lease deeds legally defective, the lessors subsequently transferred their interest in the property by registered Kabalas in favour of the plaintiff.
Held: The Kabalas cannot be called sale-deeds and they pass no title.
Makbul Ahmed Contractor Vs. Md. Idris (1969) 21 DLR 511.
—‘Sale’ explained.
Sale means a transfer for a fixed or ascertained price and it takes effect in the year in which the price is so fixed for till then there is no sale and the asset, unless destroyed, demolished or discarded, continues to be deemed to be in the use of the assesses.
M/s. Chittagong Engineering & Electric Supply Co. Ltd. Vs. Income Tax Officer, (1970) 22 DLR (SC) 443.
—Mere execution and registration of a sale-deed ipso facto does not pass title to the purchaser. Intention is consideration paramount and it can be inferred from circumstances.
Mahar Ali Mathar. Vs. Daliluddin Chowkidar (1979) 31 DLR 392.
—Right of reconveyance a transferable Right.
A right to reconveyance cannot but be assignable, unless the terms of the contract manifest an intention to restrict the right to the transferor personally.
Saukat Ali vs. Shamsun Bibi (1975) 27 DLR (SC) 59.
—Sale of property worth more than Rs. 100—Not sale for purpose of preemption.
Section 54 of the Transfer of Property Act, ‘1882, enjoins that sale of any immovable property worth more than Rs.100/- can be effected only by a registered deed and so, in a place where (he provisions of section 54 of the Act is in force, sale of immovable property worth more than Rs. 100/- not complying with the provision of the section is not a sale for purposes of suit for pre-emption.
Jangi Vs. Jhanda PLD 1961 Baghdad-ut-Jadid 34 (DB). (Shabir,J).
Ss. 54, 53—Oral transfer of land—No interest passed to transferee—Principle of part performance is not applicable.
Where the transfer of land was affected by an oral agreement and it was sought to be enforced on the plea of part performance of sale.
Held: The plea of part performance cannot have the effect of abrogating the provisions of the Registration Act or the Transfer of Property Act by creating an interest which under these Acts can only be created by a registered instrument.
Sohna Vs. Allah Dad, PLD 1962 Baghdad-ul-Jadid 17 (DB) (Bashir Ahmad, J).
The same was held in Manzoor Ahmed Vs. P & T Co-operative housing Society PLD 1962 Kar. 476 (DB). (Anwarul) Haq. J).
S. 54—Oral sale of land—Right of pre-emption may be exercised in respect of sale.
No doubt, a sale made in violation of the provisions of section 54 of the Transfer of Property Act would not be a valid sale, but if the law of preemption permits that a sale, which is otherwise complete, can be pre-empted and if the pre-emptor is prepared to take over (he defective title of the vendee, he cannot be prevented from doing so, simply because the vendor and the vendee have colluded with each other to deprive him of his rights. Whatever rights are possessed by the vendee, under such a defective sale, would go to the pre-emptor, if he succeeds, and if he is prepared to take that risk, it is not for the vendee to say that his title is defective and that, therefore, the defective title cannot be passed on to the pre-emptor.
Gullan Vs. Mow. Ramzan PLD 1962 (WP) Baghdad-ul-Jadid 33 (DB). (Masud, J).
S. 55—The principle embodied in section 55 regarding charge of the purchase money on the property sold in favour of the vendee, cannot be invoked in respect of an illegal contract which is void admit b. 1951 PLR (Lah) 307.
—An agreement for sale is in fact a promise to transfer ownership of the land and if by the sale-deed the land in fact has not been transferred a breach of contract would appear to occur (he moment the sale deed is executed which has not the effect of transferring the promised title. 1953 PLR (Lah) 689.
—Decree was for specific performance of contract for sale of land—Decree did not contain any direction for delivery of possession—The decree-holder is entitled to delivery of possession without such direction.
Jahiruddin Ahmed Vs. Joynal Abedin Khan (1962)14 DLR 739.
—“Document of title”—Income-tax clearance certificate and Custodian’s certificate—Are not such documents—Vendee not entitled to insist on “examining” such documents but only to be satisfied that vendor has obtained them.
Abdul Hamid Vs. Abbas Bhai Abdul Hussain Sodawaterwala (1962)14 DLR (SC) 24.
Ss. 55, 58—Sale with condition of repurchase—Repurchase can be enforced only by strict compliance with agreement. As a simple agreement for reconveyance the right of repurchase given to the plaintiff cannot but be a special privilege or a concession given to him and if the plaintiff wants to take advantage of that special privilege and concession he must strictly conform to the terms of the agreement.
Abdur Rahman Vs. Raji Ranga Laskar PLD 1964 Dacca 230(DB)=PLJ? 1963 Dacca 496. (Chaudhury, J).
S. 55(1)—Income-tax certificate stipulated to be produced by seller—Not produced—Buyer may rescind contract of sale. Where an agreement of sale of land provided for the securing of a no-objection certificate from the author ties by the seller as well as the making out of a marketable title, but the seller was unable to secure the certificate and unable thus to make out a marketable title.
Held: That the seller had committed a breach of the terms of the agreement. P & T Co-op. Housing Society Lid. Vs. Manzoor Ahinad PLD 1961 (W.P) Karachi 53. (Faruqui, I).
S. 55(2)—Apprehension that land agreed to be purchased is to be acquired by Development Authority—Purchasers may rescind contract. The purchasers were entitled to rescind the contract of sale in view of the threat of the acquisition of the lands in question. The plaintiffs would be entitled to take the attitude that they were not going to purchase the land which was under the cloud of requisition and that they were not going to wait and see what course these apprehended proceedings were going to lake.
P & T Co-op. Housing Society Ltd. Vs. Manzoor Ahmad PLD 1961 (WP) Karachi 53.’ (Faruqul, J).
—Where the seller not having title to the property sells the same, the buyer is entitled to recover the consideration money from the seller, and the question of limitation for the filing of the Suit to recover money in such a case does not arise.
Jahura Bibi alias Bani Bibi Vs. Saijuddin Khalifa (1965)17 DLR 216.
—Material defect in the title to the property—Repudiation of contract.
An agreement was executed by the defendant for sale of a Certain property to the plaintiff. A certain amount was paid by the plaintiff as earnest money. The registration of the document for sale was to be completed by certain fixed date.
In the meanwhile before the arrival of the date for the completion of the transaction, namely, the execution and registration, etc., the Government published a notice that a development scheme has been framed which proposed the acquisition of the property contracted to be sold to the plaintiff. The plaintiff thereupon refused to complete the sale on the ground that the notice referred to above constituted a material defect in the title to the property and demanded the return of the earnest money.
Held: By the issue of the notice a material defect was created in the title which the vendor was capable of passing on the due date. Time being clearly of the essence of the contract, the purchaser was within his rights to rescind the contract at once, and the forfeiture of his earnest money was, therefore, not in accordance with the relevant stipulation in the contract.
Associated hotels of India Ltd. Vs. RB Jodha Mal Kothalia (1954) 6 DLR (FC) 168.
—The undertaking clearly indicates that the contract was subject to title being approved by the purchaser and that this was a term in the contract. Ibid.
—Though the vendor had good title at the time of contract for sale he was not in a position to give the vendee at the time fixed for the completion of the sale, a tide free from reasonable doubt, owing to the material imperfection that set into it as a result of the notice by the Government for the acquisition of the property. The vendee was, therefore, entitled to repudiate the contract and claim back the earnest money. Ibid.
—The matter is different where what the vendee desires is a piece of property, and in the result he stands to get a property different from what he contracted to get or believed that he would get under the contract. Where the vendee is faced with the prospect of being left with nothing but a sum of money as a result of his entering into the transaction, e.g. a sum by way of compensation assessed according to law the difference is even more marked. Ibid.
—Covenant to indemnify is distinguishable from covenant of title. Former does not run with property sold, and benefit of it does not pass to subsequent transferees unless specially assigned— Remedy of subsequent transferee—By suit for money compensation against his own transferor. 1956 PLR (Lah) 1840.
S. 55(4)—Part of sale price left with vendee to be paid to a previous mortgagee, remaining unpaid—Amount unpaid is part of consideration of sale and is a charge on property sold. 1955 PLR (Lah) 772.
Ss. 55(4)(b)—Money decree creating a charge only on the suit property—Cannot be enforced for the purpose of selling the property.
Where a decree is a money decree together with a declaration of charge in respect of the decrctal amount upon the plaint properties, unless a decree was passed specially for sale of the properties mere creation of charge does not, of itself, operate as a decree for its enforcement.
Abdul Jubbar Vs. Abdul Aziz (1967) 19 DLR 7.
—Applicability of the section—Clause (4)(b) of section 55 of the Transfer of Property Act is applicable where ownership of the Suit property has passed to the buyer before payment of the whole of the purchase money.
Mahar Ali Matbar Vs. Daliluddin Chowkidar (1979)31 DLR 392.
S.56—Marshalling by a subsequent purchaser.
There is no reason why the equitable rule of marshalling by a subsequent purchaser embodied in section 56 of the Transfer of Property Act should not be extended to sales other than private sales.
Mahtabuddin Vs. Nim Chandra Sachi (1952) 4 DLR 95.
—Accordingly though a decree-holder has a right to have all the properties mortgaged to him put up for sale, it is entirely in the discretion of the Court to direct in which order the properties should be sold, if by such direction, the Court can give relief Co deserving parties without any prejudice to the interest of the decree-holder. Ibid.
S. 58—Mortgage and paramount title.
Where neither party objected in the Court’s going into the question of paramount title in a mortgage suit and it was contended in the High Court in second appeal that the Courts below committed an illegality in entering into the question of paramount title in a mortgage suit;
Held: If it does not lead to confusion and inconvenience then the Courts arc entitled to go into the question of paramount title in a mortgage suit to satisfy the ends of justice.
Held further: A mortgagee who is in possession of the land is in no way estopped from questioning title for the mortgagor as a paramount titleholder in the suit land. I PLR (Dat) 606.
—The mortgage of a lease in any of the six forms specified in the Transfer of Property Act is not an absolute assignment and does not create privity of estate between the lessor and the mortgagee.
Harados Dc Vs. Moazzam Hossain (1954) 6 DLR 220.
—The prior mortgagee without impleading puisne mortgagee got decrees and purchased mortgaged property. The puisne mortgagee brought a suit on his mortgage, got decree and obtained possession through Court before the decrees and possession of the prior mortgagee. The purchaser of the mortgaged property in puisne mortgagee’s decree brought a suit for possession against the prior mortgagee’s purchase at a time when the prior mortgagee was barred by time. The prior mortgagee cannot claim that purchaser in the puisne mortgagee’s decree must redeem his prior mortgage. Where the prior mortgagee was not barred then he can claim, it not being necessary for prior mortgagee to bring a fresh suit.
Md. Danai Vs. Syihet Loan and Banking Co. (1950) 2 DLR 9.
—The true rule is that a mortgagee cannot by a mere assertion of his own or by any unilateral act of his, divest himself of his character as mortgagee and convert his possession as possession of an absolute owner.
Messer Ali Matbar Vs. Jabbar Ali (1955) 7 DLR 103.
—Sale with a condition of repurchase— Difference between a document as one of sale with a condition of repurchase and one of mortgage by conditional sale.
The question is whether the document under reference purports to create a mortgage by conditional sale or sale with a condition of repurchase.
In the margin of the document the word ‘kotkabala’ finds place and in the top margin of the document the word ‘haba-kabala’ occurs, But there are no such words in the text of the document which open with the expression.
Held: If the document is read as a whole it can be found that by the rider clause in the document towards the end it was purported to be a sale with a condition of repurchase.
If the clause of reconveyance is read as a whole it will appear that the power to get the property reconveyed was with the transferor and transferor alone because towards the beginning of the reconveyance clause it has been stated clearly that the transferor or his successor-in-interest could pay back the money but the right to have the property reconveyed was to the transferor himself.
Such use of first person singular in the deed itself cannot give right to a dispute regarding the right to take reconveyance of the property by anyone other than the transferor himself. The language cannot be interpreted to mean that this right to take the reconveyance was given to the successor-in-interest of the transferor. It was thus a personal covenant of the transferor.
Md. Affan Vs. Tazal Hoque (1975) 27 DLR 58.
S. 58(b)—Mortgage security (by deposit of title deeds) furnished for advance of loans already made as well as for those to be made afterwards—All advances on this security shall be on the basis of the single mortgage already made and for limitation the time will run from the date of last advance.
M/s. Tripura Modern Bank Ltd. Vs. Islam Khan (1971) 23 DLR 22.
Simple and usufructuary mortgage—Mortgage—Difference between simple and usufructuary mortgage—Delivery of possession being an essential condition in case of usufructuary mortgage—S subsequent delivery of possession where the mortgage is a simple mortgage will not convert it into usufructuary mortgage. (1956) 8 DLR 599.
S. 58(c)—Mortgage by conditional sale—Test to differentiate between mortgage and s1le.
It appears that at the top of the document Ext. 3(a) there is mention of kot-kabala although in the body of the document it has been described as ???? ?????? ???????? ????????. It has also been stated in the document that the transferee would be entitled to mutate his name in the Sherista of the landlord and to enjoy the properties as his own with the right of inheritance and that he would be entitled to possess, settle, etc. In the last part of the document it has stated that in case the transferor or his heirs repay the consideration money, the sold land would be released.
Thereafter again it has been stated that the document has a kabala. The word ‘khalash” is also quite prominent in the document.
By reason of the confusion created as a result of use of the expressions like “khalash, kabala, kotkabala, sale,” it became essential to enter into the intention of the parties.
In the instant case before us we find that the following elements arc in favour of the plaintiff:
1. inadequacy of price;
2. no time limit;
3. purchase of stamps and payment of registration costs by mortgagor (should be taken as indicative of mortgage);
4. stipulation of repurchase in the same document; and
5. use of the expression kot-kabala” in the very body of the document and not merely in the margin as in the other case.
There are again certain other additional features, namely, that the transferor continued to pay rents. Then again mukti patra executed by the transferee shows that the document was a kot-kabala.
In these circumstances, it must be held that the present is a case of mortgage by conditional sale. When the integrity of the mortgage has been split up by redemption of a part of it, partial redemption of the remaining part can be allowed.
Tazel Hoque Vs. Md. Affan (1968) 20 DLR 282.
—Sale or mortgage. Tests to ascertain whether a deed is a sale-deed or mortgage by conditional sale.
Question whether a particular document is a mortgage or a sale has to be determined with reference—
(1) To the terms of the document itself with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to the existing facts;
(2) With reference to another fact viz time elapsed from the time when the bargain was made between the parties to the time when the present suit was instituted;
(3) The tests for determination of the question are not the same in this country as in England;
(4) The applicability of Bulter’s test;
(5) The court must find the substance behind the form.
Girish Ch. Roy Vs. Hassan Mia (1950) 2 DLR 290.
—In constructing a document the following recitals in the document should be taken in-to consideration
(i) If within the period fixed the executants do not redeem the Kot then the absolute maliki right shall accrue to the recipients;
(ii) If the document begins and also ends with word kot-kabala and there is no such word as is found usually in a sale deed “bikray kabala” or kabala.
(iii) The mere fact that the period mentioned is a short one is not conclusive to show that the transaction is a sale.
(a) The fact that the recipients of the documents bear the cost of registration is not sufficient alone to convert a transaction into a sale.
(b) The fact that there is no stipulation for payment of interest is also of no avail to convert the transaction into a sale.
Girish Ch. Roy Vs. Hassan Mia (1950)2 DLR 290.
Sale or mortgage—A sale with a condition of repurchase is not a mortgage. The distinction between a sale and a mortgage is one of intention.
Abdul Hafiz Chowdhury Vs. Samer Ali (1952) 4 DLR 126.
—Various tests which have been devised for determining whether the intention is to mortgage or to sell are; (i) the existence of a debt, (ii) the period of repayment—a short period being indicative of a sale and a long period of a mortgage; (iii) possession of the property, the continuance of the grantor in possession indicating a mortgage (iv) existence or otherwise of a stipulation for payment of interest or reconveyance, a stipulation for interest or repayment indicating mortgage. (v) adequacy or inadequacy of the consideration, a price below the true value indicating mortgage, (vi) presence or otherwise of the stipulation of conveyance in the document itself, the stipulation of reconveyance embodied in the deed prima facie indicating that the transaction is a mortgage; and (vii) purchase of stamps and payment of registration costs, the same if done by the transferee being indicative of a sale.
Abdul Haflz Chowdhury Vs. Samer Ali (1952) 4 DLR 126.
—The adequacy or inadequacy of the price is a test which must be cautiously applied. In deciding a question whether a transaction is a sale or a mortgage, the Court must find the substance behind the form. Ibid.
—The adequacy or inadequacy of the price on transfer is a test which must be cautiously applied for, in ascertaining the amount of the consideration, the right of the repurchase, which must necessarily fetter the ownership of the buyer, is never left out of consideration and mere inadequacy of the price, unless it is very great, is not, therefore, a safe test. It is also now well-established from decided cases that a longer period for reconveyance indicates a mortgage, while a short period indicates a sale.
Abdul Majid Vs. Serajuddin (1952) 4 DLR 478.
—In absence of a stipulation that the recipient will have to reconvey the disputed property in the same state and condition as it was taken from the vendors at the date of the sale, the agreement is a mere personal covenant and cannot convert a sale to one of mortgage by conditional sale. Ibid.
—Embodiment in the document of sale of the condition of repurchase as provided for in the new proviso to clause (c) of section 58 is not a decisive test. The effect of the proviso is that if the condition of repurchase is not embodied in the document, the transaction will not be regarded as a mortgage but it does not follow that if the condition is embodied in the document the transaction must necessarily be a mortgage. Abdul Haflz Chowdhury Vs. Samr All (1952) 4 DLR 126. Abdul Majid Vs. Serajuddin (1952)4 DLR 478.
—If a document prima fade appears to be a mortgage, it is nevertheless open, to the other side to show that it was intended to be an out and out sale.
Two documents, one a sale-deed followed by an agreement to re-transfer the property, do not constitute a mortgage unless it appears from the documents in the light of the surrounding circumstances that the parties intended the transaction to be a mortgage and in a suit for redemption instituted many years after the transaction, cogent reasons of such intention are necessary. The fact that there are two documents instead of one does not make any difference.
Chandra Kanta Howlader Vs. Rama Prasanna Ganguly. (1953)5 DLR 29.
—Though the transaction may in fact have been a mortgage, yet, when the condition of re-sale is not embodied in the document that effects or purports to effect the sale, then the transaction cannot be treated as a mortgage.
‘The rule laid down in the proviso to clause(c) of section 58 is a rigid one and unless the stipulation regarding reconveyance is embodied in the document of sale, the transaction (entered into after the date on which the proviso was incorporated by the Amending Act of 1929). will not be treated as a mortgage, the intention of parties or the fact that the condition of repurchase was embodied in a separate document will be irrelevant. Principle laid down in the case of Chandra Kanta Howladar [(1953) 5 DLR 29)] held not applicable after the incorporation of the proviso.
Abdus Sattar Mallik Vs. Yunus Mallik (1960) 12 DLR 849.
—Condition embodied in the same document—prima fade mortgage by conditional sale.
Proviso to section 58(c) of the Transfer of Property Act does not lay down any rule that if the condition is embodied in the same document, it shall be deemed to be a mortgage or there will be a presumption of a mortgage by conditional sale, shifting the onus on the other side to show that the transaction is an out and out sale.
The most important tests by which to judge whether a transaction is a mortgage or out and out sale arc(a) existence of debt, (b) the period of payment, (c) the continuance of the grantor in possession, (d) stipulation for interest on repayment, (c) the value of the property in question. (1952) 2 DLR (Dac) 443.
—Condition of repurchase or conditional sale.
In order to determine whether the documents constituted are absolute sale with a condition of repurchase or a mortgage by conditional sale subsequent conduct of the parties can be taken into consideration when some of them are not representative-in- interest of the parties to the documents. Section 92 of the Evidence Act does not stand as bar to that.
Chandra Kanta Howlader Vs. Rama Prasanna Ganguly (1953)5 DLR 29.
—The expression “such payment” in section 58(c) means payment on a certain date. Ibid.
—Sale—Out and out sale with another deed for reconveyance within a certain period of time executed simultaneously—Enforceable in law—Consideration is the mutually enforceable contract.
Shyama Pada Singha Vs. Dhirendra N Bhadra (1957) 9 DLR 439.
—Where the kabala and the ekramama were executed on the same day and at the same sitting, they formed contemporaneous agreements and the consideration for the ekrarnama was in part the execution of the kabala and the transfer of the lands thereby made. Ibid.
—Clause (C) of section 58 applicable to a mortgage by conditional sale or similar mortgages—Suit for redemption of mortgage maintainable when money has been tendered and refused.
The terms of section 58(c) of the Transfer of Property Act apply only to a mortgage by conditional sale or a mortgage of a similar nature and not to a sale or to a mortgage of any other kind, namely, a usufructuary mortgage. I hold that the aforesaid mortgages are not hit by the provisions of section 58(c) of the Transfer of Property Act.
A person interested in the equity of redemption tendered the dues within the stipulated period but on refusal by the defendant to accept the same, they were sent by money orders, which again were refused by the latter. In this context, there has been a valid tender so as to give rise to a right to institute a suit for redemption by the plaintiffs.
If the mortgage debt is paid, or a tender thereof is made, by any person interested in the equity of redemption, a mortgage suit can be instituted by any other person who has a right to the equity of redemption.
Nabin Chandra Moral Vs. Lalit Mohan Das (1967) 19 DLR 338.
—Sale or mortgage—Tests for determining—The following tests have been devised to determine whether the intention was to mortgage or to sell.
(i) the existence of a debt;
(ii) the period of repayment—a short period being indicative of a sale and a long period of a mortgage;
(iii) Possession of the property, the continuance of the grantor in possession indicating a mortgage;
(iv) existence or otherwise of a stipulation for interest on repayment indicating a mortgage;
(v) adequacy or inadequacy of the consideration, as inadequate price indicating a mortgage;
(vi) presence or otherwise of the stipulation of re-conveyance in the document itself, the stipulation of reconveyance embodied in the deed being prima facie an indication that the transaction is a mortgage; and
(vii) purchase of stamps and payment or registration costs; the same, if done by the transferee, being indicative of a sale.
Tazel Hossain Vs. Md. Affan (1965) 17 DLR 613.
—Covenant for repurchase—Personal suit by heirs.
Where the covenant for repurchase is personal the suit for re-conveyance at the instance of the heirs of the transferor is not maintainable. Ibid.
—Mortgage by deposit of title deeds— When requires registration.
A mortgage by deposit of title deeds does not require any writing and being an oral transaction is not affected by the Law of Registration. It is however usual in these transactions that such deposit of title deeds is accompanied by a memorandum in writing. The question which often arises is whether the writing was of such a character as to require registration. The decision of that question must necessarily turn upon the nature of the document itself though assistance may be had from the consideration of the surrounding circumstances.
Begum Vs. Fatimabhai, PLD 1961 (WP) Karachi 537. (Faruqui. J).
S. 58(d)—Under section 58(d), Transfer of Property Act a usufructuary mortgage creates a liability.
Tasiruddin Sk. Vs. Asaruddin Mallik (1950) 2 DLR 55.
—Usufructuary mortgage—Definition—Does not contain a personal obligation to pay debt.
According to section 58(d) of the Transfer of Property Act, where the mortgagor delivers possession of the mortgaged property to the mortgagee and authorizes him to retain such possession until payment of the mortgage money and to receive the rents and profits accruing from the property in lieu of interest or in payment of mortgage money, or partly in lieu of interest and partly in lieu of mortgage money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee. The very definition of the expression “usufructuary mortgage” as given in section 58(d) of the Transfer of Property Act indicates that the mortgagor is not personally liable for payment of the mortgage debt. If such an obligation exists in a transaction of mortgage, the mortgage would be either a simple mortgage, an English mortgage, a mortgage by deposit of tide deeds or an anomalous mortgage. In all such cases, there must be an obligation by the mortgagor to pay the mortgage debt personally; but if no such obligation is created, the mortgage, without any doubt, would be a usufructuary mortgage.
Khushi Mohd. Vs. Sultan Ali PLD 1962 (WP) Lahore 960 ‘Masud, I.)
S. 58(f)—Equitable mortgage by deposit of title deeds—Ingredients which have to be established.—No such mortgage is created with mere deposit of title deeds for advances to be made in future.
It is well-settled that in the case of a mortgage by delivery of title deeds, the debt must be proved, the deposit of title deeds has to be established and the intention that the tide deeds deposited was as a security for the rent should be made out. It is also established on authorities that a mortgage by delivery of tide deeds is not created when the deeds arc deposited before any money is advanced with a view to prepare a future mortgage, and there is no express agreement that they shall stand as security for future advances.
Tide deeds may be deposited under an oral agreement to cover present and future advance.
Subha Karam Vs. State Bank of Pakistan (7962) 14 DLR 193.
—Mortgage by deposit of title deeds with intent to create a security thereon—Letters showing deposit of title-deeds unless create a relationship between the parties in present do not require registration. Where it is found that letters showed the deposit of title-deed in the past registration not necessary and are admissible in evidence.
United Bank of India Ltd. Vs. Azirannessa Bewa (1965) 17 DLR (SC) 169.
Mortgage by deposit of title deeds— Memorandum of deposit of title deeds purporting to create in present interest in property in favour of plaintiff—Such writing constitutes contract of mortgage and not mere record of completed transaction, and is compulsorily registrable—Such writing, in absence of registration, held, not only inadmissible in evidence but also does not create any mortgage— Deposit of title deeds not independent of such writing—No right or interest, in circumstances, held, could be created in property even by deposit of title deeds.
Messrs. Eagle Star Insurance Co. Ltd. Vs. Messrs Usman Sons Ltd. (1969) 21 PLD (Kar) 123.
—Equitable mortgage—Extract from record-of-rights—Not a title deed—Cannot create equitable mortgage. The extract from the record-of-rights cannot at all be treated as a title deed, because of conveyance of the land no property in the extract, which can be obtained by any person from the survey office on payment of requisite fee, can be said to pass to the purchaser. Ibid.
—Equitable mortgage—Mortgage not proved in favour of plaintiff for want of registration of memoranduin of deposit of title-deeds—-Advance of loan and receipt thereof, however, not denied by defendant-plaintiff, in circumstances, held, entitled to money decree. Ibid.
S. 59A—Under Section 59A of the Act the heirs of a mortgagee are entitled to recover payment of the mortgage debt and enforce the mortgage in a court of law just as much as the original mortgagee. Abdus Sattar Howladar Vs. Afeluddin Chokdar (1952)4 DLR 89.
S. 60—A co-mortgagor by redeeming the mortgage in full, cannot be held by his own action to have split up the integrity of the mortgage giving a right of piece-meal redemption to the other mortgagors. There is only one condition in which the integrity of the mortgage can be said to be split up and that is provided for under section 60 of the Act, and that case is where a mortgagee has acquired the share of the mortgagor 55 CWN (3 DR) 15.
Redemption, equity of—
Rights available to the holder of the equity of redemption, when such equity of redemption is entirely unrepresented in a suit, (i) in the case of simple mortgage, and (ii) in the case of a puisne mortgage.
Hohenaddin Shaikh Vs. Esmail Sikdar (1957) 9 DLR 294.
—Where the equity of redemption was entirely unrepresented, in other words, where the holder of the equity of redemption was not made a party in a mortgage suit, neither the decree nor the sale in execution of the decree in such a suit would affect the rights of the holder of the equity of redemption. Rights which arc available to the holder of an equity of redemption are as follows:
Right of redemption—Extension of time
In the case of a simple mortgage, the mortgagor even after the mortgage retains in himself (a) right to redeem the mortgage property and (b) a right to the physical possession and enjoyment of the property;
If the equity of redemption is unrepresented in a suit, then these two rights remain vested in the holder of such equity of redemption and his right to redeem the property and to remain in physical possession thereof remains unaffected. Where there is nothing left to redeem, as for example, where the enforcement of the mortgage has become barred by limitation, the right to remain in possession must necessarily remain absolutely unaffected and free from the right of redemption.
In the case of a puisn mortgagee, it is wrong to think that he has as such puisne mortgagee any right to possession, for, as a puisne mortgagee, his rights are (a) to redeem a prior mortgage and (b) to foreclose against the mortgagor and, unless such foreclosure has taken place in accordance with law, the equity of redemption, which includes the right to possession, remains with the mortgagor.
Hohenaddin Shaikh Vs. Esmail Sikdar (1957) 9 DLR 294.
—Until and unless preliminary decree is followed by an appropriate final decree, defendants are not debarred from redeeming the mortgage, if the court extends time limited in the preliminary decree, which the court is entitled to do under the law.
Yad Ali Sk. Vs. Hazrat Ali Fakir (1954) 6 DLR 612.
—The right of redemption is governed by principle of indivisibility of the mortgage security. Neither the mortgagor nor the mortgagee can have any relief inconsistent with this principle unless there is any special stipulation in the mortgage bond or any subsequent arrangement between all the parties concerned, authorizing a departure. In the absence of such stipulation or arrangements the owner of a fragment of the right of redemption cannot redeem share unless the mortgagee or all the mortgagees, where there are more mortgagees than one, has have acquired in whole or in part the share of a mortgagor. His right is a right to redeem the entire mortgage and he can enforce this right even though the mortgagee is willing to allow him to redeem his share only.
Sm. Sabeda Khatun Vs. Nayeb Ali (1953)5 DLR 57.
—Court’s power to set aside the order for delivery of possession.
Where after the delivery of possession was taken by the mortgagee in executing a final decree for foreclosure, the mortgagor files objections to the exclusion under section 47 CPC, and asked the court, in exercise of its equitable jurisdiction, to set aside the order for delivery of possession and give sufficient time for payment of the money due under the decree.
Held: The court had no power within its equitable jurisdiction to grant relief sought. The proviso to section 60 and the provisions of Section 91, Transfer of Property Act in themselves may not be conclusive, but the provisions of Or. 34, rr.2(c) and of the Code of Civil Procedure put the question beyond doubt.
Sardar Autar Singh Vs. Sir Md. Ejaj Rasul Khan (1951)3 DLR 366.
Principle of indivisibility of mortgage Mortgagee’s right in regard to whole mortgage debt-property sold for arrears of revenue. Lands referred to in sale papers constituting only portion of mortgage lands.—original mortgagee cannot claim any mortgage rights in the remaining lands.
By a deed dated 25th May 1921A mortgages with possession of certain land in village S along with his other lands to B for Rs. 23,000. In 1935
land revenue in respect of the mortgaged land being in arrears, the mortgage rights of value of Rs. 23,000 in respect of the land in villages were put to by auction and the said rights were purchased by The sale was confirmed under section 92 of the Land Revenue Act, 1887 and a certificate to that effect was issued to C. Subsequently on 23rd August, 1939, B transferred his mortgage rights in the mortgage dated 25th May 1921 to D who sued to enforce rights:
Held: As a result of revenues sale in 1935 the of B in the full sum of Rs. 23,000 were transferred to C and nothing was left in B that could pass to D by transfer on 23rd August 1939. It could not be contended that because the mortgage rights in respect of lands in village S only were referred to in the revenue sale, the rights of the mortgage B in respect of other lands were still outstanding in B, as B could not part with his mortgage rights in respect of the whole of the mortgage debt and yet retain any part of his rights in respect of some part of the mortgage land. The position is the same whether the mortgagee sells himself or as here his rights are sold by paramount authority.
Golam Sarwar Khan Vs. Abdul Wahab Khan (1951)3 DLR (PC) 41.
Ss. 60 and 61—Plaintiff mortgagors must sue to redeem the entire mortgage and not their own share only. One of the mortgagors alone subsequently mortgaging property to mortgagee plaintiff mortgagors not bound to redeem such subsequent mortgage along with the first. (1952) PLR (Lah) 509.
S. 60—All persons interested in the equity of redemption need not be impleaded in a suit.
Section 60 of the Transfer of Property Act does not require that all persons who have a right to the equity of redemption must be joined in a suit.
In this case the suits were instituted by the original mortgagors against the original mortgagee, namely, the defendant. The original mortgagors also impleaded their transferee of a fraction of the mortgaged property as a co-plaintiff, the transfer having been made by the plaintiffs themselves. If a decree is given in favour of the plaintiffs, the mortgaged property would stand transferred to the plaintiffs.
Niban Chandra Moral Vs. Lalit Mohan Das (1967) 19 DLR 338.
—Purchase of a share in the equity of redemption whether in Court sale or by a private treaty cannot discharge mortgage debt fully.
State Bank of Pakistan Vs. Khaledar Ma (1962) 14 DLR 734.
—Tenancy right not affected because of a mortgage between the landlord (as mortgagor) and the tenant on the security of the tenanted land. The original tenancy right between landlord and tenant does not cease to exist merely on the ground the landlord mortgages the same property rented the tenant, if the mortgage money is later on paid by the landlord or a transferee of the landlord.
The disappearance of mortgage with the payment of mortgage money by the mortgagor can in no way affect the tenancy right inasmuch as the tenancy right is an independent transaction which has no relationship with the part transaction.
Noor Ahmed Vs. Md. Safi (1970) 22 DLR (WP) 39.
Equity of redemption—When extinguished by mortgagor’s default.
In this case the mortgagor defaulted to pay the arrears rent and the mortgagee was not under any obligation either in law or in contract to pay the arrear rent for which the land was sold out in the execution of a rent decree and the right of redemption of the mortgagor was extinguished. In Guari Shankor Sahu Vs. Sheotahag, AIR 1936 Patna 434 it was held that the rent sale extinguished the mortgagor’s equity of redemption when it was not proved to be fraudulent. The same view was followed in Fckua Mahso Vs. Babu Lal Sohu, AIR Patna 382. In the present case the plaintiff’s equity of redemption was extinguished for his own default to pay arrear rent and there is no evidence to show that the mortgaged property was collusively or fraudulently sold Out for any default of the mortgagee.
In the present case the mortgagee or his heirs had not undertaken any obligation to pay arrear rent for which the land was sold in a rent sale and there was no evidence to show that the suit property was sold in the execution of a rent decree because of any default or any collusion of the mortgagee or their heirs.
(Had the mortgaged property been purchased by defendant No.8 or had defendant No. 9 purchased the property in the benami of the heirs of Abdur Rashid or in collusion with them, then, by operation of section 90 of the Trusts Act, defendant Nos. I to 8 could be held responsible for holding the property for the benefit of the mortgagor and fiduciary relationship between the mortgagor and mortgagee would have subsisted and the suit would have been within time under Article 148 of the Limitation Act.
Plaintiff’s right of redemption was extinguished long ago when the mortgaged property was sold in execution of a rent decree.
Sukhendu Bikash De & anr. Vs. Nurul Islam & ors. (1979) 31 DLR 71.
S. 63—Mortgagor liable to pay cost for provident when any of the tests under the section is fulfilled. State Bank of Pakistan Vs. Khaledar Ma. (1962)14 DLR 734.
S. 64—A property can only be transferred by, a deed of conveyance—Contract of sale does not pass title to the property. Ashutosh Mali & ors. Vs. Shams unnahar & ors. (1981) 33 DLR 254.
—Transfer does not date back to the date of agreement for sale. Date on which registration of the Kabala takes place would be date for determining the status of tenancy. Ibid.
Sections 65 and 66—Mortgagor in possession, entitled to create leases
A mortgagor in possession being the owner his property is not only entitled to create leases like patni and permanent leases but may do so irrespective of their effect upon the mortgage security, provided, only that they are not wasteful or destructive within the meaning of section 66 of the Transfer of Properly Act.
The principle limiting the right of the mortgagor to alienate or create any interest with respect to the mortgaged property which is peculiar of English Law has no application to the mortgages in this country.
- Since the mortgage money in a mortgage without possession can never be fixed the right of the mortgagor to create interest in the mortgaged property must depend on the slate of the mortgage account at the moment of the creation of such interest.
Kali Prasad Chakraboruty Vs. Jitendra N Chowdhury (1952) 4 DLR 15.
S. 67—Stipulation that if money is not paid within 15 years the purchaser shall have right to foreclose—Section 67 applies.
Moulvi Ruhul Amin Vs. Bazal Huq & ors. (1979) 31 DLR 165.
—Mortgagor—When he is barred to redeem the mortgaged property.
Even in the case of mortgage by a conditional sale the mortgage does not automatically mature into sale. Section 67 of the Transfer of Property confers upon the mortgagee, any time after the mortgage money has become due to him and before a decree has been made for redemption of the mortgaged property, a right to obtain from the Court a decree that the mortgagor shall be absolutely debarred of his right to redeem the property, or a decree that the property be sold.
Hasina Begum Vs. Haji Md. Ekramullah (1982) 34 DLR 116.
—Right to redeem, in case of mortgage by conditional sale.
If the mortgage is not foreclosed and the mortgagor’s right of redemption is not debarred. So far as the right to redeem is concerned, a mortgage by a conditional sale like othcr mortgages will be governed by provisions of the Transfer of Property Act.
Hasina Begum Vs. Haji Md. Ekramullah (1982) 34 DLR 116.
S.73—The object of section 73 of the Transfer of Property Act is only to protect a mortgagee whose security has been diminished. The section does not lay down that if a mortgaged property is sold owing to failure to pay arrears of revenue or other charges of a public nature or rent due in respect of such property the only remedy of a mortgagee is to claim payment of his money Out of any surplus of the sale-proceeds. The section permits a mortgagee to take recourse to this section only when his security has been diminished on account of sale as contemplated by section 73.
Tripura Modern Bank Ltd. Vs. Khan Bahadur Khalilur Rahman (1973) 25 DLR (SC) 34.
S. 76—Mortgagee in possession is to pay rent.
Before the amendment of section 76(c) of the Transfer of Property Act the land as regards the liability of the mortgagee in possession for arrears of rent can be found in the provisions of sub-section (d) of section 65 of the Transfer of Property Act and that section was not amended by the Act 20 of 1929. That section says that the mortgagor is to pay rent if the mortgagee is not in possession. From this it can be legitimately deduced that the mortgagee in possession is to pay rent.
Alip Chand Bibi Vs. Karamwlla (1954) 6 DLR 115.
—If the mortgage of a leasehold property amounts to an assignment or transfer, the mortgagee would be liable for the rent to the landlord. Haradas Dc. Vs. Moazam Hossain (1954) 6 DLR 220.
—A sale in execution of a decree for rent against a mortgagee in possession of a lease-hold property does not affect the lessee’s right. Haradas Dc. Vs. Moazzam Hossain (1954)6 DLR 220.
S. 76(c)—Where a usufructuary mortgagee takes upon himself the burden of paying off the rent of the property under mortgage and makes the stipulation that if for any default in payment of rent the mortgage property is lost on account of sale for arrears of rent and purchased by the mortgagee or his successor-in-interest, that purchase will ensure to the benefit of the mortgagor, specially where the purchase takes place, in relation to a decree for arrears of rent for the period under mortgage.
Safayat Ali Shah Vs. Annada Pr. Roy (1955) 7 DLR 222.
—Under section 76(c) of the Transfer of Property Act, mortgagees are responsible for sale of the property in execution of a decree for arrears of rent even though they are for a period prior to the execution of the deed. (1954) 6DLR 115.
—The mortgagee in possession of the mortgaged property is bound to pay the usual rent and protect the property from the sale. If the land is sold at a certificate sale for default in payment of rents by him, it is still open to redemption by mortgagor. 6 PLR (Dac) 210.
S. 76(e)—The true rule is that a mortgagee cannot, by a mere assertion of his own or by any unilateral act of his, divest himself of his character as mortgagee and convert his possession as possession of an absolute owner.
Mesar Ali Matbar Vs. Jabbar Ali (1955) 7 DLR 103.
Ss. 76(h) and 77—The exception laid down in section 77 of the Transfer of Property Act is subject to the rule embodied in section 5 of the Assam Money Lenders (Amendment) Act, 1943 which limits die liability of the mortgagor to double the principal of the loan.
Keramat Ullah Vs. Manindra Ch. Datta (1954) 6 DLR 45.
—Refund of the excess paid.
Where there has been excess payment over double the principal, the mortgagor on the application of the rule of accounting and refund laid down in section 76(h) of the Transfer of Property Act can ask for a refund of the excess paid whether or not there was any contract that the usufruct would be set off against interest or interest and a specified portion of the principal.
Keramat Ullah Vs. Manindra Ch. Datta (1954) 6 DLR 45.
Excess of the double of the principal
In determining whether the money lender has received any sum in excess of the double of the principal of the original loan, amounts set off before the commencement of the amending Act are required to be taken into account.
Keramat Ullah Vs. Manindra Ch. Dana (1954) 6 DLR 45.
S. 82—Contribution to mortgage debt—Not against mortgagee.
Section 82 applies to mortgagors inter se and gives one mortgagor a right to have the other property contribute to the discharge of the mortgage debt. This right cannot be availed of against mortgagee or auction purchaser. 54 CWN (DR-2) 287.
S. 83—No deposit, when necessary.
Section 83 has no application when by reason of section 26 GBT Act the property is free from liability.
All that section 83 of the Transfer of Property Act says is that the amount remaining due on the mortgage may be deposited. If nothing is due, then no deposit is obviously called for.
Sm. Sabeda Khatun Vs. Nayeb Ali (1953) 5 DLR 57.
Ss. 83 and 84—Mortgage—Minor—Misrepresentation—Minor entering into mortgage fraudulently representing as to his age and subsequently bringing action for restitution of mortgaged property—Restitution of property to be ordered—Minor must, however, be made to refund consideration— Maxim He who seeks equity must do equity.
Shah Pasand Khan Vs. Hasan (1969)21 PLD (Pesh) 306.
S. 91A—Partial owner of the equity of redemption is entitled to redeem the whole mortgage.
Arab Ali and others Vs. Abdul Khaleque Prodhania & ors. (1981)33DLR 11.
S. 92—Subrogation—Insurance Company can be subrogated in the position of the insured and thereby become vested with the right of the latter to sue the person liable originally to the insured.
Trans Oceanic Steamship Vs. Issak Haji Shakoor (1960) 12 DLR 690.
‘Redeemed in full’—Explained
The words “redeemed in full” in section 92(4) do not mean that the subrogator should pay the entire amount himself. All that is required by the section is that the payment either of the entire sums Secured by the bond or such portion as may be outstanding at the time, provided it puts an end to the right to the mortgagee under the bond, and redeems the mortgage in full, will give rise to a right of subrogation. 55 CWN (3 DR) 15.
S. 95—One of several mortgagors— What connotes
Section 95 has by Act XX of 1929 been amended in such a way that sections 92 and 95 of the Act, as they now stand make it clear that the right of the co-mortgagor redeeming is the “same right as the mortgagee whose mortgage he redeems may have against the mortgagor” occurring in section 92 of the Act. “One of several mortgagors” in section 95 means one of several persons interested in the equity of redemption. 55 CWN (3 DR) 15.
—S.100—Charge—Registration of document—creating a, when necessary— Unregistered document creating a charge where the amount involved is over Rs. 100/- not admissible.
Abdur Razzak liowladar Vs. Sh. Muhammad Shaft (1960) 12 DLR 395.
—Charge as distinguished from mortgage.
A charge comes into existence when property of one person is by act of parties or operation of law made security for the payment of money to another and the transaction does not amount to mortgage.
Abdur Razzak Howladar Vs. Sh. Muhammad Shaft (1962) 14 DLR (SC) 119.
S. 101—Two mortgages held by same person—Merger of mortgages only when they are intended to be so treated.
A merger of estates takes place when two estates held in the same legal right become united in the same person. Where the capacity in which a person in possession of the mortgagee’s right is something quite different from the capacity in which he is in possession of the equity of redemption, the mere fact that the two capacities are united in the same physical person cannot result in a merger. But merger can be held to have taken place only by proving that the person in whom both the rights vest had intended to treat both the rights as one, and not otherwise. Gula Jan Vs. Sahib Gul. PLD 1963 (WP) Peshawar 1 I0=PLR 1964(2) WP 900. (Daud, J).
—Rule of merger.
Section 101 deals only with mortgages and charges; it is inapplicable to a case where a right of rcconveyancc having been reserved by a vendor, that right is subsequently sold by the vendor to the vendee but this does not necessarily mean that where see- lion 101 does not apply, the rule of merger should be applied. The section as it states makes non- merger the rule, and consequently merger an exception. (1952) PLR (Lah) 196.
S. 105—Tenant-at-will liable to pay compensation and not rent.
The designation “tenant-at-will” though gives the impression of a tenant, it lacks the incidents of an ordinary tenancy, for, a tenant-at-will is not liable to pay any rent and there being no question of demise or lease in his case he is not liable for mesne profits or damages like a trespasser because his occupation is permissive; but he is liable to pay compensation for such USC and occupation.
Rai Mohan Chowdhury Vs. Tejendra Lal Roy (1954) 6 DLR 577.
—Nowhere in the Transfer of Property Act a tenant-at-will is recognized as a lessee. Section 105 recognizes only a lease for a certain time, express or implied, that is periodic leases or leases in perpetuity. Ibid.
Sections 105 and 106—Purpose of the lease will determine whether a lease will be governed by the BT Act or the TP Act.
Where the purpose for which a lease was granted was for residential and shop purposes the main fact that part of the lease-hold was agricultural wilt not take it out of the scope of the Transfer of Property Act, the principle being that the purpose of the lease will determine whether a lease will be governed by the BT Act or the TP Act.
Ramani Mokan Mozumdar Vs. Jasodha KamarNath (1959)11 DLR 253.
—Lease—The English rule that a conveyance to operate as a lease must reserve reversion to the lessor has no application to the Transfer of Property Act.
Mohsin and Tahir Vs. Firoze Nana Ghuiam Ali (1958) 10 DLR (WP) 45.
S. 105—Lease and license—Line of demarcation.
The line of demarcation between a lease and a license will sometimes be very thin. A lease is a transfer of an interest in immovable property. Ownership of physical property consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a part of the rights of ownership.
Abdullah Bhai Vs. Ahmad Din (1964) 16 DLR (SC) 169
—The right of ownership as well as the rights of which it is composed are rights in rem and not in personam and by the lease a right in rem is transferred to the lessee. On the other hand, a “license” will appear from its definition in section 52 of the Easements Act as merely a competence to do something which except for this permission would be unlawful. It does not confer any rights in physical property. There is in the case of a license only a personal agreement between the licensor and the licensee whereby the licensor agrees not to interfere with the doing of particular acts on property which is in his possession. No right in rem passes to the licensee.
The Criterion for distinguishing between a lease and a license is simple, i.e., whether any right in immovable property itself, a right in rem, has passed to the person concerned. But the determination of this question may be difficult in the circumstances of a particular case. Where there is a document the evidence will have to be considered with due regard to the provisions of sections 91 and 92 of Evidence Act, 1872.
Abdulah Bhai Vs Ahmed Din (1964) 16 DLR (SC) 169.
—Government servant occupying Government quarter allotted to him is neither a licensee nor his possession is permissive like the possession of a tenant-at-will—He is a lessee from month to month.
Md. Aboo Abdullah Vs. Province of East Pakistan (1970) 22 DLR 392.
—Lease and license—Lease creates limited interest in immovable property which is both heritable and transferable—Licence does not create any interest in property; so it is neither heritable nor transferable.
Mianjan Ali Vs. Province of East Pakistan (1970) 22 DLR 235.
Ss. 105 and 106—The essential elements constituting a icase, arc the following; (a) the right must be one as to immovable property; (b) the right must be that of enjoyment of immovable property; (c) there must be a transfer of such right; (d) the right of transfer is an interest in property; (c) the transfer must be made for a certain time, express or implied, or in perpetuity; (1) the transfer must be one for consideration; (g) the consideration must be of the particular kind namely, premium or rent, as defined by the section, either or both of them.
Abdus Sattar & Ors. Vs. Suresh Chandra Das (1980) 32 DLR (AD) 170.
—Termination of a lease on quit notice—Right of occupation is a personal one and cannot create any interest in the land—This right ceases with the death of either of the parties and hence not heritable. Ibid.
S. 106—Lease for a manufacturing purpose—Notice to quit
A lease for the purpose of preparing ornaments being for a manufacturing purpose, is to be determined by 6 months notice under section 106 of the Transfer of Property Act.
Mohsin and Tahir Vs. Firoze Nana Ghulam Aly (1958) 10 DLR (WP) 45.
—Notice to quit—Monthly tenancy.
When a monthly tenancy commenced from a particular month, it means that the tenancy commenced from the 1st date of that month to be terminated with the last date of every Bengali month. Notice was served on the 4th of Karuck, 1351 asking the tenant to quit by the last date of the month of Kartick, 1951.
Held: The notice served was a valid and sufficient notice.
Sri Nath Bhuiya Vs. Gopal Ch. Chattopadhyay (1955) 7 DLR 56
—Notice refused by addressee— Addresses fixed with knowledge of its contents.
If a person refuses a notice, he should be affected with knowledge of it contents.
If a letter reached the other party and was refused by him, he must be affected within the knowledge of the letter which he refused to read. If the defendant has minded to satisfy the court that he got no opportunity to get the letter, it was for him rather than for the plaintiff to call evidence to prove what he asks the court to accept.
Byramji Hormosji Ghadialy Vs. Mst. Sarabai (1959) 11 DLR (WP) 165.
Monthly tenant—Holding over, has an accruing interest during every month thereafter as a tenant.
Under the Transfer of Property Act, a tenant holding any premises for a month has an accruing interest during every month thereafter springing out of the original contract and as parcel of it, and oral agreement of lease accompanied by delivery of possession is valid for the first month and thereafter the lessee continuing in possession with the assent of the lessor, expressed or implied, becomes a tenant by holding over under section 106 of the Transfer of Property Act. Therefore, a tenant holding such a tenancy has an interest for the month with an accruing interest during every month thereafter springing Out of the original contract and as parcel of it.
Such a tenancy is also transferable if allowed under the terms of the lease and under the provisions of law.
Gouri Bala Pal Vs. Kunja Lal Saha (1960) 12 DLR 37.
—On the death of the original tenant the tenancy devolves on the heirs and can only be terminated by a notice to quit. Ibid.
—A pucca building consisting of 3 rooms and the land on which the building stood and also the open space lying to the west of the building were let Out and the demised lease-hold is described as consisting of ‘niskar’ land, etc., and the ‘pucca building’ for a term of two years with the option of one renewal. The lessee failed to exercise the option of renewal and continued Lo hold the tenancy as monthly tenant. The plaintiffs determined the tenancy by 15 days’ notice to quit after the expiry of the month:
Held: The notice to quit is valid, legal and sufficient; the tenancy being a monthly tenancy 15 days’ notice was quite sufficient.
Faizur Rahman Vs. Jogendra Mohan Das (1951) 3 DLR 115.
—An ex-tenant under East Bengal Nonagricultural Tenancy Act cannot claim the benefit of service of notice.
Nihar Ranjan Pal Vs. Mst. Nurannessa Chowdhurani (1958) 10 DLR 472.
—No notice to quit is necessary as against a sub-tenant.
Sk. Md. Amir Ali Vs. Abdur Rahim (1957) 9 DLR 102.
—Notice to quit—The other incident of the tenancy which is lacking in the case of a tenant-at- will is that a tenant-at-will is not entitled to any ejectment notice as in the case of other tenants and the landlord may file an ejectment Suit straight away without serving any notice of ejectment on him. If a suit has to be filed against him, Article 139 of the Limitation Act will not apply but Article 144 will apply and this latter Article also applies to a suit against a trespasser.
Rai Mohan Chowdhury Vs. Tejendra Lal Roy (1954)6 DLR 577.
—Monthly tenant—15 days’ notice.
Where a non-agricultural land is held by a nonagricultural tenant as monthly tenant the provisions of section 106 of T.P.Act will apply and the tenant will be entitled to 15 days’ notice for the purpose of a suit for ejectment.
Bengal River Service Ltd. Vs. Sree. Muralidhar Ray (1955) 7DLR 525.
—The provisions in section 106 of the T.P.Act for 15 days notice expiring with the end of the month of the tenancy is one and the single rule of law and cannot be split up into two—one as to the length of the period of notice and the other terminating that period with the ending of the month of the tenancy.
Abdus Sattar Vs. Syed Shaha Md. Hassan Ali Quaderi (1956)8 DLR 316.
—The agreement was to the effect that three months notice will be required to be served on the tenant for vacating the premises.
Held: The agreement about three months’ notice being contrary to section 106, these provisions about 3 months’ notice is to be taken from the date of service of notice and after the expiry of three months the tenancy will terminate. Ibid.
—In terms of agreement a 3 months’ notice was served on 12.3.54 asking the tenant to vacate the house on the expiry of the 1st. day of July, 1954.
Held: This is a valid compliance with the agreement between the parties. Section 106 TP Act has no application in this case. Ibid.
—A notice to quit though not strictly accurate or consistent in its statements, may be effective, and should be construed not with a desire to find fault in the notice which would render it defective but on the principle than it is better for a thing to have the effect than be void. Ibid.
—Plaintiffs are entitled to get a decree for rent as under section 116 of the Transfer of Property Act, defendants would be held to be tenant under plaintiffs by holding over after the termination of the lease. Settlement of a new lease in favour of a third party cannot affect defendants’ right which can only be terminated by a valid notice under section 106, Transfer of Property Act.
Alimas Ullah Vs. Srish Ch. Dam (1951) 3 DLR 526; 1 PLR (Dac) 593.
—In the absence of a valid notice to quit the defendants who are tenants by holding over arc liable to pay rent. Ibid.
—Even supposing that the tenancy was terninated by a lease to a third party then also defendant, though having no lawful title, are tenants on sufferance and liable to pay rent. Ibid.
—Notice to quit on or before a date, being the date on which tenancy expires is a good notice.
In the case of a monthly tenancy where it does not appear from what date the tenancy commenced, a notice terminating the lease with the end of the month following is valid and legal.
Satish Ch. Pal Vs. Mst. Mazidan Begum (1958) 10 DLR 271.
—Notice need not contain the date of the commencement of the tenancy when evidence during trial clears the point. Monthly tenancy expires on the midnight of the 30th of each month.
Ramani Mohan Mozumdar Vs. Joshodha Kr. Nath (1959) 11 DLR 253.
—The lease in this case expired on the last day of the month. One months notice given on 3rd August, 1954, and received by the tenant on 8th August 1954, the regulating suit having been instituted on 13th November, 1954, was held in order, not only because it did not contravene section 106, but also because the suit had been instituted more than 3 months after notice ruling Out any possibility of prejudice on the score of the notice not having expired on the last day of the month of tenancy. 1956 PLR (Lah) 112.
—Denial of the title of—Forfeiture.
In a suit for ejectment by landlords the denial of the title of the plaintiff would in law result in the forfeiture of the right of the leasehold interest of the defendants. Lessees whose tenancy is terminated by notice under section 106 of the T.P. Act is estopped in an ejectment suit from setting up title subsequently acquired by them in the suit lands.
Bayza Bibi Vs. Debendra Lal Roy (1950)2 DLR 360.
—When the question is whether the lease was for dwelling purpose or manufacturing purpose.—Matters to be looked into.
In order to decide whether a tenancy has been obtained for a manufacturing purpose, one must find the actual purpose for which the lease was obtained. If a lease of some premises was obtained for the purpose of dwelling and the said premises had been used for manufacturing purpose, it cannot be held that mere’ user of the building for manufacturing purpose would make the lease a lease for manufacturing purpose within the meaning of section 106 of the said Act. Conversely, in the absence of any other evidence to the contrary, a long user for a manufacturing purpose would constitute a good circumstantial evidence that the lease was obtained for such a purpose.
Shaikh Mahmudur Rahman Vs. Amulya Kumar Sarker (1967) 19 DLR 743.
—Quit notice—After the expiry of the lease period (which provided for 6 months’ notice) period of quit notice shall be as provided by section 106.
AK Fazlul Huq Vs. Nibaran Chandra Saha (1967)19 DLR 901.
—Notice to quit—Slight inaccuracies will not render the notice invalid.
Nehar Ali Biswas Vs. Nazam Negar Rashida (1967)19 DLR 905.
—Notice to quit should be interpreted liberally and not found illegal for slight inaccuracies.
By the notice the plaintiff has directed the defendant to quit the premises ‘by the 31st December, 1960.
It was contended that the word “by” has no legal meaning but its dictionary meaning is ‘during’ and accordingly the possession of a tenant of a premises during subsistence of the tenancy is a lawful one and as such the tenant could not have been asked to vacate during the subsistence of the tenancy.
Held: The rule of construction of a notice to quit is to put upon it a liberal construction in order that it should not be defeated by slight inaccuracies on the date of the expiry of the notice. But at the same Lime the notice must be reasonably certain so that the recipient of it is not misled as to the intention of the notice-giver.
Messers Memon Trading Co. Vs. Messrs Hajee Gaffar Fiajee Habib Janno (1965) 17 DLR 677.
—Lease—Notice to vacate on or before a date being the date on which the lease terminates is a valid notice.
The landlord served a notice on the tenant (a monthly tenant) on the 1st Bhadra under section 106 of the Transfer of Property Act to vacate the premise on or before the 1St day of Aswin next.
It was contended that the notice was bad inasmuch as the defendant was asked to vacate on or before the 1st of Aswin although the lease would terminate by the mid-night of 1st of Aswin.
Held: For the fact that by the notice the defendant was asked to vacate on or before the 1st day of Aswin, it cannot be held that the notice was bad. A notice to quit on or before a date being the date on which the tenancy expires is a good notice.
Ahmadur Rahman Vs. Sheikh Mafazzal Hossain (1962) 14 DLR 826.
—Presumption of due service of notice under the section.
The question is, has the notice been served validly? It has been proved that it was sent by post to the address of the defendant and that it has come back to the plaintiff on refusal by defendant to accept service of the said notice. The postal cover under which the notice was sent bears the endorsement of the postal peon to the effect that it was refused. It is, therefore, clear that the appellate Court below has rightly held that the said tenancy was terminated by a good notice under section 106 of the Transfer of Property Act and that it has been properly served, as required by law.
Sultan Ahmed Vs. Sayed Ahmed (1967) 19 DLR 42.
—Suit for ejectment’ of tenant— Sufficiency of notice under section 106 T.P. Act determining tenancy in respect of suit premises belonging to the wakf estate in his personal capacity but he filed the suit as mutawalli of the wakf estate—
Held: Notice so served is not valid, legal and sufficient and the suit filed on its basis must fail.
Abdul Hafiz Vs. Syed Md. Kazem (1971)23 DLR 12.
—Period of notice provided in section 106— Has no application when period of such notice is mutually agreed upon. Goalundo Industries Vs. Pakistan (1970) 22 DLR 349.
—Termination of a tenancy by service of notice under section 106 of the Transfer of Property Act, does not entitle the Government to evict a tenant by the summary procedure of Act X of 1953.
The petitioners who were monthly tenants under the Government had their lease of monthly tenancy terminated by service of notice under section 106 of the Transfer of Property Act by the Government. When on demand they refused to vacate the premises, they were sought to be summarily evicted by the application of the provisions of section 5 of the Act of 1953. The petitioners then moved the High Court under Art, 98 of the Constitution of Pakistan, 1962 on the ground that invoking the summary provisions of a different Act, namely, Act X of 1953 for evicting the petitioners was wholly unauthorized in law.
Held: The petitioners as monthly tenants of the building who are not Government servants do not come within the mischief Act X of 1953 and therefore, not liable to be evicted under the provisions of the Act.
Amin Medical hail Vs. Province of East Pakistan (1970) 22 DLR 555.
—Printing and publishing business, not a manufacturing business—Type-foundry is, no doubt, a manufacturing business, but where it is just subsidiary to the printing business which is the principal business, such type-foundry cannot acquire the status of manufacturing business.
Shamsher Nessa Sakeba Bwioo Vs. Ali Mohsenuddin Ahmed (1975) 27 DLR 643.
—A wrong number given in the notice to quit issued under sec. 106 TP Act will not invalidate a suit for eviction, if the party had a clear conception of the actual subject of the suit, notwithstanding the wrong description.
Fazilatunnessa Vs. Nowshad Ali (1977) 29 DLR 315.
—Notice to quit is intended to afford an opportunity to the tenant to vacate the premises without resorting to any litigation and it is only when he refused to vacate that he can be evicted through due process of law. Ibid.
—A liberal construction should be put on notice to quit.
It is the duty of the court to put a liberal construction in order that the notice to quit is not defeated by any slight inaccuracy and the recipient is not misled as to the intention of the notice giver. Ibid.
—Monthly tenancy cannot be terminated without notice u/s.106.
In the absence of legal proof that a valid notice as required under section 106 of the Transfer of Property Act, terminating a monthly tenancy was served on the tenants, a suit for eviction of the tenant is not maintainable in law.
Mir Deiwar Hossain Vs. Joynal Abedin (1977) 29 DLR 214.
—If a tenancy is a monthly tenancy the month must either be referable to a calendar month or fixed by contract. Ibid.
—Premises at the inception taken for use as a godown—Subsequent conversion of it without the landlord’s consent for manufacturing purpose will not change its original character.
Hayatunnessa Vs. Abdur Rahman (J974) 26 DLR 342.
—In the absence of a contract or local usage a lease of immovable property for agricultural or manufacturing purpose is a yearly lease and 6 months notice is necessary. All other leases are to be deemed as leases from month to month terminable with 15 - days’ notice. Ibid.
—The tenancy (which was for manufacturing purpose) commenced on 1st Falgoon, 1362 B.S.— Notice to quit the premises by 31st Chaitra, 1382 was served u/s. 106 T.P. Act giving 9 months’ time to vacate—Defense contention was that the termination of the tenancy should coincide with the year of tenancy. Here it should be on 31st. March, 1382 (i.e. last day of the year of tenancy)
Held: In place of 6 months’ notice u/S. 106 TP Act the defendant in this case has got 9 months’ time to quit and as such notice to quit is valid in law.
Iuman Mia Vs. Zainab Bibi, wife of Haji Abdus Salam (1983) 35 DLR 351.
—Notice received by the addressee’s wife’s brother (who had been in the service of the addressee) on the addressee’s premises is a proper service as contemplated u/s 106, though he may not be regarded as a member of the family.
Hajee Khabiruddin Ahmed Vs. Md. Salam Kabir (1982) 34 DLR (AD) 271.
—Plaintiff was the tenant of the shop room under the Pourashava who transferred the same to defendant 4 with notice to the plaintiff and instructing him at the same time to attorn to defendant 4 as his landlord failing which he was required to vacate the premises—Plaintiff was further asked to clear off arrears to the Pourashava—Plaintiff did neither— Notice to the plaintiff by the Pourashava is a notice u/s.106 and on his failure to vacate the premises he was liable to be evicted.
Md. Zahir Abdullah Khan @ Zahir Abdullah Khan Vs. Abdul Latif (1983) 35 DLR (AD) 354.
—Tenancy created on payment of rent—A monthly tenancy is terminable by 15 days’ notice. The Bangladesh Premises Rent Control Ordinance says, a tenant means a person by whom, or on whose account, rent is payable for any premises, and includes a legal representative as defined in the Code of Civil Procedure, and a person continuing in possession after the termination of a tenancy in his favour. A glance at the definition along with the definition of ‘landlord’, which is nothing but the counterpart of the tenant, indicates that the definition was inserted in the Ordinance only to emphasize the tenant’s liability to pay rent and nothing more, and this meaning becomes clear when we advert to the second half of the definition of ‘tenant’, which says that it also included a person continuing in possession after the termination of his tenancy.
Abdus Satar Vs. Suresh Ch. Das (1980)32 DLR (AD) 170.
—Tenancy-at-will creates a personal relation between the original landlord and the tenant and is terminable by the death of either—Lease is created u/s. 106 TP Act. Ibid.
—Terminating a tenancy from year to year—How to be counted.
Whether the notice period of six months as contemplated in the law for terminating a tenancy from year to year under section 106 of the Transfer of Property Act must end with the expiry of the year of the lease or with the expiry of the calendar year and whether the notice terminating the tenancy, therefore, conformed with -the statutory requirement.
According to the learned Counsel, if the lease is from year to year which, in his opinion, it is, the notice to vacate should have been given six months prior to the end of the year of the lease, and not with the end of the calendar year. As the kabuliyat was registered on 9th Falgun, 1356 B.S. corresponding to February 21 1950 the period under notice should have ended on 8th Falgoon of the year in which notice was given. Instead of this, the notice which was served by registered post on 25th Aswin, 1366 B.S. asked the appellant to vacate by 30th Chaitra, 1366 B.S. As no particular date has been mentioned in the kabuliyat as to when the lease commenced, according to Mr. Khondaker, it commenced from the date of the making of the lease.
Nur Banu Vs. Noor Mohammad and others (1983) 35 DLR (AD) 182.
—Issue as to sufficiency of notice not having been raised in the courts below, the defendant can not be allowed to raise it now. Ibid.
—Sufficiency of notice—as decided by the Privy Council.
In the case of Benoy Krishna Das, (37 CWN PCi) the terms of the lease showed that the lease was “from the 1st day of June, 1921 for the term of four years thence next ensuing”. The lease ended on the midnight of 1st June, 1925. Any notice to determine the tenancy thereafter given must be a notice to quit expiring with the month ending at midnight on the first day of the month. Here, the tenants held over and notice to determine their monthly tenancy was given on 1st February, 1928. The Judicial Committee held that the notice was a proper notice under section 106 of the Transferor Property Act and it expired on the midnight of 1st March and not on the 29th of February.
Nur Banu Vs. Noor Mohammad and others (1983)35 DLR (AD) 182(183).
—Notice under section returned refused by post office—If notice is sufficient for termination of tenancy.
The question of the presumption of service through the post is obviously one that has to be decided upon the facts of each case and seeing the envelope in this case and the postal endorsement thereon, we have no doubt that we are perfectly safe in accepting the presumption that arises under section 114(c) in this particular case. Therefore the refusal of the notice under s.106 would be sufficient to terminate tenancy.
Jaffer Sultan Zaidi Vs. United Commercial Corpn. Ltd. PLD 1962 (WP) Karachi 561 (DB) (Raymond, J) [But see PLD 1963 Dacca 477 ‘DB) 1.
—Notice—plea that notice, was not proper not raised in trial Court—Not allowed to be raised in appeal.
Where the validity of notice was not challenged in lower Court but was sought to be raised for the first time in appeal.
Held: The appellant is not entitled to raise the question of the validity of the notice of ejectment at appellate stage for the first time.
Rajabali Vs. Gujrat Bus Service PLD 1961 (WP) Karachi 486 (DB) (Anwarul Haq, J).
—One month’s notice alleged to have been given to tenant to vacate premises— Notice for period less than one month— Notice is invalid.
When the allegation in the plaint was that one month’s notice had been given to the tenant to vacate the premises but it was found that the notice was for less than one month. The landlord urged that he should be taken to have given 15 days’ notice as provided under this section. The Court repelled the contention and held that as the allegation was of one month’s notice, the fact that it was for a shorter period would be fatal for the suit.
GA Jaffery Vs. Karachi Port Trust PLD 1962 (Kar) 32 (Wahiduddin, J.)
—Monthly tenancy expiring after 4 months—Tenant continuing in possession subsequently—Liable to pay rent.
Where the four months of the lease expired on 24.7.49 and the defendants continued in possession without any objection by the plaintiff. Years passed and the plaintiff claimed rent.
Held: That the plaintiff had assented to the defendants continuing in possession and, therefore, the lease must be held to have been renewed from month to month because that was the purpose of it as specified in section 106 of the Transfer of Property Act.
Zahir Ahmad Vs. Seth Sugnichand PLD 1965 (WP) Karachi 195.
Sections 106 and 107—Whether a lease is monthly or yearly, depends upon the contract.
It is not at all correct to say that there cannot be a yearly lease for the purpose of a shop. Whether lease is monthly or yearly, depends primarily upon the contract by which it was made. It is only in the absence of any contract or local law or usage that the question of its purpose arises; and the rule is that a lease for any purpose, other than for agriculture or manufacture, must be deemed to be a lease from month to month.
No doubt section 106 of the Transfer of Property Act draws a line of division between lease for agricultural or manufacturing purposes on one side and the rest on the other; but it does not interfere with the freedom of contract.
Md. Siddik Vs. Rabeya Khatun (1954)6 DLR 250.
—Reservation of an annual rent.
The reservation of an annual rent is not by itself sufficient to prove in every case that the lease is from year to year. A mere reservation of an annual rent would not make a lease from year to year unless the deed is registered or where a contrary intention is deciticible from the contract between the parties. Ibid.
—Where an annual rent has been reserved with a provision for forfeiture, fixing 30th Chaitra every year as the fatal date of default it does not show that a monthly tenancy was intended. The default of monthly installment has no adverse consequence until the end of the year and this fact is of importance, for it goes to show that the tenant is not to be disturbed even though he had failed to pay the rent until the end of the year Ibid.
Ss. 106, 107 & 110—Kabuliyat being a document executed by one party only, provisions of sections 106 & 110 will not apply to it. Nur Banu Vs. Noor Mohd. (1983) 35 DLR (AD) 182.
Ss. 106, 108—Sub-lessee or assignee of lease—Cannot be evicted without termination of lease.
Sub-lessee or assignee of lease cannot be evicted without terminating the original lease.
Kasim Vs. Chandrabahan PLD 1962 (Kar) 253 (DB). (Wahiduddin. J.)
Ss.106 and 110—Where after the expiry of the lease the tenant holds over, the notice to quit should be served considering the provisions of section 106 read with section 110 of the Transfer of Property Act.
Where after the expiry of the original lease, a tenant continues to be a tenant by holding over, then as regards service of notice to quit, the terms of the original agreement shall govern the same unless a new agreement is made. It is created quite independent of the original tenancy unless an agreement to the contrary is to be found.
Kobbat Ahmed Vs. Abdul Sabur Sawdagar (1973) 25 DLR 282.
Ss. 106 and 111(g)(e)—When the denial of title will operate as forfeiture whereby notice under section 106 dispensed with.
The denial of the title of the plaintiff in order to operate as a forfeiture enabling the plaintiff to dispense with the notice under section 106 of the Transfer of Property Act is available when the same is done on an earlier occasion prior to the filing of the suit itself.
Denial of the title of the plaintiff-landlord in the written statement of a suit is not available as a ground for forfeiture, which dispenses with necessity of serving a notice so far as is required to be provided in that suit itself though such a denial may be clearly taken advantage of for other purposes as well as in subsequent suits.
The denial of the title of the plaintiff by the defendant in this suit, however, is possible to be taken advantage of by the plaintiff on a subsequent occasion.
Ahmed Hossain Chowdhury Vs. Mst. Zakia Khatun (1968) 20 DLR 1154.
Ss. 106 and 116—Lease agreement of a premises expired—Tenant continued in possession in absence of renewal of the original lease or further agreement and the landlord accepted the rent— Holding over of such premises by the tenant will be governed not by the original lease but by the general provisions of section 106 of the Act.
Md. Rafique Vs. Md. Siddique (1970) 22 DLR 56.
Ss. 106, 117—Agricultural leases— Provisions of s.106 should not be applied rigorously unless there is notification in official gazette.
The principles embodied in section106 of the Transfer of Property Act are not to be regarded as being opposed to principles of justice, equity and good conscience, but at the same time they are not to be applied in all their rigour to agricultural leases, in the absence of a notification in this behalf under section 117 of the Transfer of Property Act.
Rajabali Vs. Gujrat Bus Service PLD 1961 (WP) Karachi 486 (DB) (Anwarul Haq, J).
Section 106- The revisional power exercised by the High Court Division is discretionary and is to be exercised to prevent of error of law occasioning failure of justice High Court Division in revision could interfere with the concurrent findings of fact of the Courts below only on the ground of error of law resulting in an error in the division occasioning failure of Justice. The findings of the Courts below based on consideration of the evidence on record is not liable to be interfered with in revision. The revisional power exercised by the High Court Division is discretionary and is to be exercised to prevent of error of law occasioning failure of justice. But in the instant case the High Court Division wrongly construed the terms of Ext.1 in its finding that the notice under section 106 Transfer of Property Act is not a valid and legal notice. Thus the impugned judgment and order of the High Court Division suffers from illegality and infirmity. The impugned judgment of the High Court Division is not sustainable in law and accordingly the same is liable to be set aside. Santosh Kumar Das -VS- Hajee Badiur Rahman, [5 LM (AD) 423]
Section 106- The High Court Division held that the question of bona fide requirement was not relevant since the transferable tenancy right was granted by the landlord on receipt of salami. However, in view of our observation regarding legality/illegality of salami, such finding of the High Court Division is not tenable. Moreover, from the deposition of witnesses, it is evident that the suit property is old and requires modernisation, especially since all the adjacent properties are multi-storied. Clearly the observation of the High Court Division is not in accordance with the law. We are of the opinion that the impugned judgement is not in accordance with law and calls for interference by this Division. Accordingly, the appeal is allowed, without however any order as to costs. ...Alhala Khatun (Most.) -VS- Rezia Khanam(Most.). [7 LM (AD) 1]
Section 106- Eviction of tenant- It appears that attornment by tenant as not necessary to confer validity of the transfer of the landlord's rights. Since attornment by the tenant is not required a notice 106 of the Transfer of Property Act in terms of lease by transferor land landlord would be proper and so also the suit for ejectment. Attornment would, however, be desirable as it means the acknowledgement of relation of a tenant to new landlord. It also implies continuity of tenancy....M. A. Awal VS Md. Abdus Rashid Khan Chowdhury, [10 LM (AD) 127]
S. 107—Lease for indefinite period— Defendant’s liability
Lease for indefinite period—Implies a life-grant unless it is otherwise from words used or conduct of parties.
Swarna Kumari Roy Vs. Sukmal Ch. Roy (1954) 6 DLR 474.
—Verbal lease for one year—Lease continues after first year with possession and landlord accepting rents—Valid tenancy, as holding over.
A verbal lease for more than one year accompanied by delivery of possession is valid for the first year and if the tenant continues in possession even after the first year and the landlord accepts rent from him, he will be regarded as a tenant by holding over.
Roshan Ali Vs. Mosammat Abedur Nessa (1962) 14 DLR 583.
—Patta executed only by lessor, void and not enforceable.
The paua in die present case was a unilateral document executed only by lessor, and not both by the lessor and the lessee. This unilateral patta offends against the provision of section 107 of the Transfer of Property Act and is, therefore, void.
Mst. Laila Begum Vs. Mst. Maleka Khatun (1968) 20 DLR 475.
—Extension of the lease without delivery of possession—Invalid.
After the termination of the original lease an extension of the lease was granted but as there was no delivery of possession accompanying the lease.
Held: Lease not valid. A lease for nonagricultural purposes for one year or less can be created either by a registered instrument or by oral agreement But such lease must be accompanied by delivery of possession as required under section 107 of the Transfer of Property Act.
Province of East Pakistan Vs. Sayed Ahmed Miyan (1968) 20 DLR 106.
—Even in a monthly lease the lessee not liable to eviction on 15 days notice, if his claim of tenancy is in respect of land.
Defendants purchased plaintiffs shop and took settlement of the land on which the shop stood and claimed a tenancy right in respect of the land by oral agreement accompanied by delivery of possession.
It was contended that such a lease other than for agriculture or manufacturing purposes shall be decumcd to be a monthly lease and the defendant is liable to eviction by 15 days’ notice.
Held: The defendant in the present case claimed his tenancy right to the land itself; so he is not liable to eviction on 15 days’ notice.
Sara Chandra Biswas Vs. Mozam Sardar (1970) 22 DLR 102.
—Unilateral lease document void for offending against provisions of section 107 of T.P. Act— Lessor and lessee respectively executed unilateral patta and kabuliyat the same day—The two documents cannot be treated as one for complying with the provisions of section 107.
As each of the documents has not been executed by both the lessor and the lessee, the lease is void.
Sheik Md. Siddique Vs. Hari Lal Nath (1970) 22 DLR 359.
—Lessor created a perpetual lease-deed in respect of some non-agricultural land in favour of lessee for —The lease-deed (a registered document) was executed by the lessor alone and not by the lessee.
Held: No valid deed is created unless the lease- deed is executed by both the lessor and the lessee.
Whether a tenancy will be governed by the Transfer of Property Act or by the Bengal Tenancy Act will depend upon the purpose for which the tenancy was created and not on the actual user of the land.
Syed Imteyazuddin Hossain Vs. Md. Abdal Majid (1970) 22 DLR 451.
—Amalnama (not registered) showing lease for 11 years—It is admissible only to show that there was a lease just for one year.
It is urged that the tenant took settlement of the fishery for eleven years from the ex-rent receiver under an Amalnama. It is, on the other hand, argued that the Amalnama (evidencing a lease of 11 years being an unregistered instrument) cannot operate to create a right in the land.
Held: Although there could not be any lease for all the eleven years in the absence of a registered instrument but there was still a tenancy for a period of one year and it has been found that the rent was paid for the first year. Hence he was a tenant for the particular year.
Province of East Pakistan Vs. Nakuldas Mirdha (1968) 20 DLR 769.
—Lease, purpose of—Lease created by an unilateral document is not hit by section 107 T.P.Act where reading the document as a whole it appears that the lease was created for agricultural purposes— Recitals to the effect that if the land remains fallow and unproductive, still the same will not be admitted as an excuse for non-payment of rent or reduction of the same and if the area of the land is found to be more on survey then the lessee will be liable for higher rent along with the stipulation that the lessee will be entitled to plant trees on the bank of the tank and rear fish therein indicate that the lease created is for agricultural purposes.
Azizur Rahman Vs. Hedayet Ahmed Chowdhury (1972)24 DLR 11.
—No need of registration of an instrument creating tenancy for a year or less although governed by the Transfer of Property Act.
Province of East Pakistan Vs. Abdul Jalil MoIla (1968) 20 DLR 1223.
—A lease-deed (10 years in the present case)— Not an agreement of lease within the meaning of section 107 of the Transfer of Property Act unless the rent to be paid by the lessee is fixed and the deed registered.
Sh. Barket Ullah Vs. Khawaja Mohammad Ibrahim, (1970) 22 DLR (SC) 419.
—Unregistered lease-deed of immovable property from year to year is inadmissible in evidence for lack of registration.
Abdul Majid Mia Vs. MW. Nabiruddin Pramanik (1970) 22 DLR (SC) 360.
—Oral lease granted—Terms of lease subsequently entered on a memo—Memo does not require registration.
Where an oral lease of property was granted and subsequently a meno in the form of a rent note was written to state the terms of the lease, and it was contended that as rent note was not registered, the lease did not materialize.
Held: It is plain from the rent note itself that lease had already been granted and in the circumstances it must follow that it was by an oral agreement accompanied by possession. Such a lease does not require to be registered as is provided by section 107, Transfer of Property Act.
Zahir Ahmed Vs. Seth Sugnichand PLR 1965 (WP) Karachi 195 (DB) (Faruqui, J).
Ss. 107, 116—Unregistered lease for more than one year—Lease operates for first year—Continuance of lease subsequent to first year by holding over must. be proved by lessee.
A lease of immovable property for a term exceeding one year, though made without a registered instrument, is valid for the first year; and if the lessee Continues to be in possession thereafter and the lessor accepts rent from him, a tenancy by holding over, from month to month or year to year, as the case may be, is created. Such tenancy must be teriminated in accordance with law before the lessor can resume possession. But the fact that there has been a lease for a year and that thereafter the lease was continued by holding over, the landlord having accepted rents, shall have to be established on evidence.
Boshirullah Vs. Province of East Pakistan PLD 1962 Dacca 126=PLR 1961 Dacca 1000 (DB) (Murshid, J).
Section 107—A patta unless executed both by the lessor and the lessee is void under section 107 of the Transfer of Property Act. A patta in order to create an interest must be executed by both the lessor and the lessee as required by this section. Where a patta was executed and registered only by the lessor the patta is void being in contravention of the provision of section 107 of the Transfer of Property Act. Therefore, the defendant No. I did not derive, any right title or interest in the land in suit on the basis of the said patta.
Narendra Nath Vs. Abdur Rahman (1974) 26 DLR 45.
S. 108—Material defect in the property
The provisions of section 108 of the Transfer of Property Act can be invoked only if the plaintiff specifics the material defect in the property with reference to its intended use. and alleges that the defendant was aware of such defect and not the plaintiff and the plaintiff would not with ordinary care discover such defect.
Hazi Abdul Karim Vs. Sk. Ali Mohd. (1959) 11 DLR (SC) 313.
—Unauthorized structure rose by tenant—Landlord cannot claim damages— Remedies.
The raising of the unauthorized structure or violation of the implied terms of the provisions of section 108, Transfer of Property Act, 1882, did not in the least entitle the landlord to claim damages unless and until it was also proved that the tenant by any of his acts had caused physical injury to the property which had resulted in some loss to the landlord. The misuse of property is one thing and wrongful use and occupation of property is another thing. The occupation or possession of a tenement can become wrongful only after the tenancy is terminated and not before that. As long as the tenancy subsisted the occupation of the tenant, in the instant case, was not that of a trespasser and no damages could be claimed from him by the landlord simply because the tenant was wrongfully making beneficial use of the demised property.
Aslam Fazal Ahmad Vs. Ghulam Muhammad PLD 1961 (WP) Kar 248 (DB) (Wahiduddin,J.)
S. 108(a)(b)_ApPlicabilit3’ of the section—Failure to deliver possession— Liability for rent.
Section 108(a)(b) of the Transfer of Property Act is applicable to an agreement for lease where it contains a term which entitles the tenant to occupy the property under it, of which specific performance could be granted.
The tenant stands in the same position as if lease has been granted to him and the landlord is bound at the request of the tenant to put him in possession of the property.
Section 108 imposes a clear obligation on the lessor to put the lessee in getting the possession of the property and he cannot avoid responsibility on the ground that the agreement stipulates that it is in the tenant’s occupation or the tenant has agreed to pay rent in advance.
Where the tenants are under agreement to pay rent in advance unconditionally from a certain date their liability to pay it continues till the time the landlord’s arc called upon to discharge their obligation of putting the tenants in possession. Any breach of section 108, Transfer of Property Act committed by the landlords at a later stage will not absolve the tenants from their liability to pay rent for the earlier period.
In cases of breach of an agreement for lease the tenant is entitled to claim damages to be assessed on the actual loss including loss of profit which the tenant had suffered on account of the alleged breach. PLR (1960)2 WP 834 (FB).
Section 108(B)
The lessor was entitled to get back the property after expiry of 50 years. After expiry of that 50 years tenure, the lease hold rights of the appellants have been extinguished. ...(13)
29 BLC (AD) (2024) 50
S.. 108(b)—When the lease is not valid, as not being accompanied by delivery of possession—a suit for damage against the lessor does not lie.
Province of East Pak. Vs. Syed Ahmed Mia (1968) 20 DLR 106.
S. 108(d)—Accession during the continuance of the lease
Section 108(d) of the Transfer of Property Act provides that if during the continuance of the lease any accession is made to the property such accession (subject to the law relating to alluvian for the time being in force) shall be deemed to be comprised in the lease.
Satya Sudihr Ghosal Vs. Surendra Lal (1954) 6 DLR 497.
S. 108(e)—When entire subject-matter of lease destroyed by fare section 108(e) of T.P.Act not applicable—Such case governed by general principies of law.
Golam Rahman Vs. Emaratannissa Begum (1970) 22 DLR 126.
—Clause (e) of s. 108 of the TP Act provides for instances in which a material part of a property is wholly destroyed or rendered substantially and permanently unfit for use for the purpose it is let, in which case the tenant has an option to terminate the lease. Sec. 108(c) does not deal with the case of total destruction of the subject-matter of the lease.
Azizur Rahman Vs. Abdus Sakur (1984) 36 DLR (AD) 195.
S. 108(f)—Repairs without notice to the landlord.
Section 108(f) of the Transfer of Property Act and also section 18 of the Calcutta House Rent Control Ordinance does not entitle a lessee of leasehold premises to make repairs, however, urgent the repairs may be, without giving notice to the landlord. 2 PLR (Dacc) 457.
S. 108(n)—Trustees or lessors clothed with fiduciary character—Their disability. Where a lessor reposes confidence in the lessee to fulfill the statutory obligation embodied in section 108(n) of the Transfer of Property Act truly and faithfully, there is to this extent a fiduciary relationship between the lessor and the lessee and the latter who will not be allowed to put himself in a position where his duty and his own interest come in conflict and to obtain an advantage over the lessor whom he is bound to protect by giving a timely information of the threat to his proprietary right.
Khan Bahadur Khalilor Rahman Vs. Binoy Ranjan Kanungoe (1962)14 DLR 84
—When a person puts himself in the position of a tenant under another, if the former allows to fall in arrears and then on a decree oblaincu exparte, himself (i.e., the tenant) purchases the property in the benami of some person, he puts himself in relation to his landlord in a fiduciary position and in purchasing this property (bcnami) in execution proceedings he acts in violation of the provisions of section 108(n) of the T. P. Act and thus cannot retain the benefit of his purchase.
Held: Section 108(n) of the Transfer of Property Act imposes an obligation upon the lessee to notify to the lessor of any invasion upon his proprietary rights by legal proceedings or otherwise, Dasudar, in the present case, had reposed confidence in Kanungo to fulfill this statutory obligation truly and faithfully and to this extent there was a fiduciary relationship between them which prevented Kanungo from putting himself in a position where his duty and his own interest came in conflict and to obtain an advantage over Dastidar when he was bound to protect by giving timely information of the threat to his proprietary rights.
Bejoy Ranjan Kanungo Vs. Khan Bahadur Khalilur Rahmwz (1968)20 DLR (SC) 286.
S. 108(o)(p)—Lease—Restrictive covenant—Terms of lease prohibiting construction on leased plot of land without consent of lessor— Lessor cannot unreasonably withhold sanction of proposed alteration which constitutes improvement.
Haroon E. H. Jaffer Vs. Sind Industrial Trading Estate Ltd., (1969) 21 PLD (Karachi) 227.
S. 109—Lessor transfers the property leased, rights and liabilities of the lessor.
Section 109 of the T. P. Act provides that if the lessor transfers the property leased, or any part thereof or any part of his interest therein the transferee in the absence of a contract to the contrary shall possess all the rights, and if the lessee so elects subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it. 1952 PLR (Lah) 21.
S. 110—Computation of period of a lease—Duration of the lease and its determination.
The section provides for computation of period of a lease in order to find out duration of the lease and its determination. It nowhere refers to any lease which is to conic into effect in a future date but only refers to a lease already in existence nor does it provide that in case of an agreement where date of commencement of a lease is not mentioned it will be assumed that the date would be the date of execution of the lease.
Bhagabat Ranjan Das Vs. Sidheswar Pakrashi (1957) 9DLR 533.
—When there is no mention of the date of commencement of a lease: An agreement for lease is not an instrument of lease but it is a contract to bring a lease into being in future. If there is no mention of the date of commencement of a lease in the contract, either expressly or impliedly, section 110 would not fill up the gap. Ibid.
—The expression ‘time limited’ is not applicable to a monthly tenancy.
The words “time limited” in sec. 110 of the Transfer of Property Act indicate that this provision will apply only to a lease of immoveable property where the lease is for a limited period and the period is expressed and in no other case.
A monthly tenancy is not for a limited period, but for an indefinite time subject to termination of the tenancy at the option of the lessee or the lessor.
Provisions of section 110 of the Transfer of Property Act has no application in computing the period of a monthly tenancy—and in monthly tenancy date of commencement should not be excluded but be included.
M. Salim Vs. Shaikh Abdul Latif (1962)14 DLR 186.
S. 111—Mortgagee’s interest in the mortgaged property subsists so long as the mortgagor has not been paid off—Any derivative title from the mortgagee ceases to exist with the extinction of mortgagee’s right in the property.
Hasina Begum Vs. Haji Md. Ekramulla (1982) 34 DLR 116.
—Interest as lessor is coterminous with the mortgagee’s interest. Ibid.
S. 111(c)—of the Transfer of Property Act provides that a lease of immovable property determines where the interest of the lessor in the property terminates on or his power to dispose of the same extends only to the happening of any event by the happening of such event. Ibid.
S. 111, (d)—Doctrine of merger
The doctrine of merger contained in section 111 is subject to section 2(c) which makes it inapplicable to leases created before the Act came in force.
Tajim Ali Vs. Saijuddin Khan (1954) 6 DLR 25.
—Merger of by operation of law and intention of parties.
But this does not mean that there cannot be any merger where the Act does not apply. If the Act does not apply there cannot be any merger by operation of law, i. e., by the union of the subordinate and superior interest in the hands of the same person. Ibid.
—In such a case the question whether there was a merger or not depends upon the intention of the parties. It is open to the person, in whose hands the two interest unite, to keep them apart or to sink the subordinate into the superior interest. Ibid.
S. 111(g)—Unauthorized alteration.
An unauthorized alteration of the lease-hold premises by the lessee does not Constitute forfeiture within the meaning of section 111 (g) of the Transfer of Property Act. 2 PLR (Dac) 457.
—Tenant’s assertion of higher status of the tenanted premises when does not always operate as forfeiture of his tenancy right.
If a tenant does not deny his liability to pay rent but asserts a higher status as a lessee than what is admitted by the landlord, such an assertion does not amount to denial of the landlord’s title, nor of the setting up of a title by the defendant in himself and therefore, that does not operate as forfeiture of his tenancy right.
Abdul Majid Mia Vs. MW. Nabiruddin Pramanik (1970)22 DLR (SC) 360.
S. 111(g)(2)—Penalty of forfeiture is incurred only after the defendant has ivpudiatcd the relationship of the landlord and tenant which can possibly happen (in a suit where the landlord sought ejectment of the defendant on the ground of the latter being a tenant under him) after, and not before, the defendant has filed his written statement denying the asserted relationship—As this stage of filing WS comes after the filing of the plaint, the plaintiff, perforce, is under legal obligation, if he wants to eject the tenant under section 106 of the TP Act, to serve notice as required by section 106 of the Act—Denial by the tenant in the WS may be availed of in a subsequent Suit .or other purpose.
Ahmed Hossain Choudhury Vs. Musammat Zakia Khatun (1968) 20 DLR 578.
S. 111(h)—Death of the original tenant
On the death of the original tenant the tenancy devolves on the heirs and can only he terminated by a notice to quit.
Gouri Bala Pal Vs. Kunja Lal Saha. (1960)12 DLR 37.
S. 116—Holding over—Tenants remain in possession of the lease-hold property.
The provisions of section 116 of the Transfer of- Property Act arc applicable where the tenant remains in possession of the lease-hold property after the determination of the lease granted to the tenant and his continuing in possession is assented to by the landlord. A tenant who surrenders does not come within the meaning of the words “remains in possession” of this section.
Aswini Kumar Poddar Vs. Taraj Ch. Rajbangshi (1954)6 DLR 652.
—Tenants by holding over.
Defendants’ lease of certain fisheries under the plaintiffs terminated in 1341 B. S., but they Continued their possession even thereafter. Plaintiff brought suit for rent against the defendants for the year 1342 which was decreed. In 1346 plaintiff granted a lease of the fisheries to a third party who failed to secure possession thereof from the defendants. Plaintiffs thereupon brought a suit for rent for the year 1346 to 1349 (with alternative prayer for damages for use and occupation during the period in suit). The defense was the denial of plaintiff’s title to the fisheries.
Held: Plaintiff is entitled to get a decree for rent as, under section 116, defendants would be held to be tenants under plaintiff by holding over after the termination of the lease in 1341 under the same terms and conditions.
Almas Ullah Vs. Srish Ch. Dam. (1951) 3 DLR 526.
—Lessor ‘otherwise assents to his continuing in possession”—Suing for rent held to indicate assent on the part of landlord—Lease renewed from year to year or from month to month as the case may be. 1954 PLR (Lah) 829.
—Lessee holding over after the period of lease becomes a tenant.
An agreement to lease immovable property from year toy or for any term exceeding one year accompanied by delivery of possession, in the absence of a registered lease deed, is valid for one year and if the lessee continues in possession with the assent of the lessor, the lessee becomes a tenant by holding over under section 116 of the Transfer of Property Act.
SM Lalita Roy Vs. Rafiqullah Khan (1966)18 DLR 107.
—Tenancy right by holding over.
The very fact that the tenant after expiry of the lease was allowed to remain in undisturbed possession of the land (non-agricultural land) for a long period (33 years in the present case) and that the holding comprising the suit land was allowed to stand in the municipal register in the name of the tenant without any protest from the landlord or the subsequent lessee who took lease of the land in tenure right clearly indicate that both the landlord and the subsequent lessee acquiesced in the holding over of the suit land by the tenant and after him by his heirs. Therefore, the tenant’s claim of tenancy right by holding over cannot be denied.
Mastakim Ali Vs. Shafique Uddin Chowdhury (1970) 22 DLR (SC) 395.
—Tenancy right—By open and actual possession for a long period in assertion of tenancy right the tenant acquires limited tenancy right.
Auction-purchaser, in a rent execution case started by the landlord against the tenure-holder, acquires only the right, title and interest of the tenure- holder but the tenancy right of any person in the said land remains unaffected by such auction-purchase. Ibid.
—Lessee holding over after the expiry of lease—Effect.
When a person is in possession of certain land on the basis of lease for a fixed term and continues as such in possession even after the expiry of the lease period the position of that person is not that of a trespasser but of a tenant holding over under section 116 of the Transfer of Property Act.
Banaras Co-operative housing Society Ltd. Vs. The Chairman, Karachi Development Authority (1970) 22 DLR (SC) 431.
—Holding over
Tenancy claimed by right of holding over— Claimant to conclusively prove it—Till this is done Government not called upon to prove compliance with Chapter V of Acquisition Act (XXVIII of 1951).
Province of East Pakistan Vs. Nakuldas Mirdha (1968)20 DLR 769.
Section 116- For declaration of title and recovery of khas possession- The provisions of section 116 of the Transfer of Property Act are applicable where the tenant remains in possession of the lease- hold property after determination of the lease granted to the tenant and his continuing possession is assented to by the landlord. A tenant, who surrendered possession, does not come within the meaning of the words "remains in possession" of this section...... Israil Kha & others VS Syed Anwar Hossain & others, [1 LM (AD) 277]
S. 117—Section 117 excludes only agricultural lease.
There is no indication in section 129 restricting its application only to a particular class of las, that is, non-agricultural land, as section 23 of the Non-Agricultural Tenancy Act, 1943 has provided. Section 117 of the Transfer of Property Act excludes from its operation only agricultural leases but not other dispositions.
Jabed Ali Vs. Abu Shaikh (1983) 35 DLR (AD) 31.
Section 118- An exchange, value of which exceeds Tk.100/-, is to be registered- The defendants contended that the records of right stand in their names and accordingly they acquired good title and interest in the suit land but if the above contention is sustained flood gates will be opened to those persons whose name have been recorded in the records of right and further the settled principles of law in this regard is otherwise; the defendant claimed the suit land on the basis of exchange between the original plaintiff and defendant and not on the basis of adverse possession and both the courts below concurrently found that the defendant failed to prove any exchange; the exchange was false and that in terms of section 118 of the Transfer of Property Act an exchange, value of which exceeds Tk.100/-, is to be registered but in the present case the value of the alleged exchange though more than Tk.100/-was not registered and accordingly having not been registered the alleged exchange is not admissible in evidence and so the finding of the courts below that the exchange has not been proved cannot be interfered and accordingly in the present case Rajab Ali was a custodian of the property and not a licensee..... Munshi Firoz Elahi -VS- Ruhul Amin alias Lablu, [5 LM (AD) 387]
S. 1 18—If an exchange of lands is not effected by a registered instrument, that would not create any interest in favour of any party to the exchange as no valid title could be created on the basis of an oral exchange.
Jabed Ali Bepari Vs. Abdul Bari Bepari (1967) 19 DLR 192.
S. 119—Exchange of property— Provision of s. 119 applicable so long as property remains in hands of person to whom it had been given in exchange and not after he has parted with same in favour of third person—Exchange of lands between A & B—Exchange deed covenanting ‘if any loss is sustained by one party due to any factual or legal flaw in title to land, ckh would be liable for any loss sustained by the other”—Liability created by covenant, held, “personal” and not “running with land” exchanged—Provisions of s. 119, held, not attracted.
Muhammad Shah Vs. Sher Muhammad, (1969) 21 PLD (Peshawar) 103.
Secs. 122 and 123: Hindu law—Gift.
It is sufficient for a valid attestation, if the attesting witnesses received acknowledgement from the executants of the deed that he put his signature or mark on the deed though the attesting witnesses themselves did not see him do it.
Kisan Panday Vs. Nageswari Debi (1956) 8 DLR 65.
—Acceptance of a gift under the Hindu Law may be either express or implied inasmuch as there is nothing in section 122 of the TP Act to say that it must be express. Ibid.
S. 123—Rule of Hindu Law—Delivery of possession.
As regards Hindu gifts to which the Transfer of Property Act applies the rule of pure Hindu Law that delivery of possession is essential to the validity of a gift is abrogated by section 123 of that Act. A gift under that Act can only be effected in a manner provided by section 123. Ibid.
—Ss. 123, 129—Oral gift by trustees—Trust not under Muslim Law—Gift is invalid for want of registration.
Where the trustees of a Trust which was not created under Muslim Law made an oral gift of some property of the trust to another trust. It was held that the oral gift was invalid for want of registration.
Standard Vacuum Oil Vs. Mir Laik Ali PLD 1962 Karachi 727 (BD). (Qadeeruddin, J).
S. 129—Provision of section 129 is applicable to Muslims only when transferring property by gift.
Jabed Ali Vs. Abu Shaikh, being dead his heirs: Md. Naimuddin and ors. (1983) 35 DLR (AD) 31.
—S. 129 and s. 117—Section 129’s application is not to a particular class of lands. Ibid.
S. 130—The true test for determining the nature of the claim sought to be assigned should be to see that the claim when it does accrue, partakes of true character of a beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant which can be recovered by an action.
Kazi Abdul Ali Vs. Nurul Amin. (1955)7 DLR 406.
S. 135A—Subrogation. Insurance company can be subrogated in the position of the insured and thereby become vested with the right of the latter to sue the person liable.
Insurance company can be subrogated in the position of the insured and thereby become vested with the right of the latter to sue the person liable originally to the insured.
Trans Ocreanic Steamship Vs. Issak Hazi Shakoor (1960)12 DLR 690.
—In case of Marine Insurance the Insurer having paid up loss sustained by the assured and being thus subrogated to the position of the assured is entitled to sue tort-feasor ,i.e., the person who has caused the loss, in his own name.
East & West Steamship Co. Vs. Queensland insurance Co. (1964)16 DLR (SC) 61.
—Even after subrogation the insured can file a suit for recovery of damages.
Though section 135A of the Transfer of Property Act only has given right to the insurer after subrogation to sue on his own behalf but that has not taken away the right of the insured to file a Suit for and on behalf of the insurer after getting compensation from the insurer.
M. Ismail and Sons Vs. Trans Oceanic Steamship Co. Ltd. (1965)17 DLR 269.
S. 136—It is not incumbent on the landlord to call and examine the postal peon who delivered the notice at the premises of the addressee.
Haji Khabiruddin Ahmed Vs. Md. Salam Kabir (1982) 34 DLR (AD) 271.
Secs. 161 & 164—Gift of property which are capable of division.
Section 161 of the TI’ Act says that a gift of property which is capable of division to two or more persons without specifying their shares or without dividing it is invalid but it may be rendered valid if separate possession is taken by each donee of their respective portion of the property or if there is a subsequent arrangement between the donees with regard to the possession of the property. Section 164 further says that when a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void, and the gift will take effect as if no conditions were attached to it.
Monzurur Rahman Vs. Rema Tea Co. Ltd. (1981) 33 DLR 49.S. 2(c)—The doctrine of merger contained in section 111 of the Transfer of Property Act is subject to section 2(c) which makes it inapplicable to leases created before the Act came into force.
Tajim Ali Vs. Saijuddin Khan (1954) 6 DLR 25.
S. 3—”Actionable claim” includes existing debts payable in future or assignments of benefits under contracts for the supply of future goods.
Kazi Abdul Ali Vs. Nurul Amin (1955) 7 DLR 406.
—The words “conditional or contingent” mean that in case of debts or benefits accruing conditionally or contingently the immediate right to recover by action does not arise until the condition has been fulfilled or the contingency has occurred. Ibid.
—The true test of determining the nature of the claim sought to be assigned should be to see that the claim when it does accrue partakes of the character of a debt or a beneficial interest in movable property not in the possession, either actual or constructive, of the claimant which can be recovered by an action. Ibid.
—Beneficial interest in movable property—Right to claim the benefit of a contract.
Right to claim the benefit of a contract for future delivery of goods sold is a beneficial interest in movable property’ within the definition of actionable claim and as such assignable. Ibid.
—A entered into a contract with B to do certain works; he also entered into a contract with C under which C agrees to finance A in the execution of his contract works on condition that his advances would be a first charge on the bills due plus certain interest.
Held: What A purported to assign was the right only to claim payment for works performed under the contract. This was not merely a right to sue for breach of contract but was an actionable claim. Ibid.
—Attestation—Personal acknowledgement of signature: A personal acknowledgement of signature or mark as regards the execution of a deed by an executor within the meaning of the section may be either express or may even be inferred from conduct and it is sufficient if it is an acknowledgement of the execution of the deed.
Hari Kissan Pandey Vs. Nageswari Debi (1956) 8 DLR 65.
—Valid attestation: It is sufficient for valid attestation, if the attesting witnesses received acknowledgement from the executants of the deed that he put his signature or mark on the deed though the attesting witnesses themselves did not see him do it. Ibid.
—Registration is notice when the document is compulsorily registrable.
The doctrine of constructive notice by reason of registration applies only in the case of documents which are compulsorily registrable.
Nagendra Chandra Vs. Purameswar Roy (1957) 9 DLR 476.
Constructive notice
—Notice of registration of sale deed is a constructive notice unless proof is given to show that there was no such notice. Ibid.
—Whatever is notice enough to excite the attention of a man of ordinary prudence and called for further enquiry is, in equity, notice of all facts to the knowledge of which an enquiry suggested by such notice and prosecuted with due diligence would have led.
Dula Mia Vs. Haji Md. Ibrahim (1956) 8 DLR 616.
—Registration a constructive notice.
Hochenaddi Sk. Vs. Esmail Sikdar (1957) 9 DLR 294.
—A registered transfer amounts to a notice.
Jamini Mosahar Vs. Md. Majibar Rahman (1953) 5 DLR 22.
—The Transfer of Property Act not being in force in the region formerly known as the Punjab, the state of the law even after the 1927 amendment of section 3 remains the same, viz, that registration by itself does not amount to notice; the question of notice is one of fact to be determined on the circuinstances of each case. 1956 PLR (Lah) 1840.
—Where licensee is permitted to erect permanent structure and thereafter allowed to continue to enjoy the same—License becomes irrevocable. A mud-wall hut is a permanent structure.
Md. Ahsanullah Vs. Etwari Mia (1962) 14 DLR 776.
—“A person is said to have notice”— When duty to make enquiry is imposed on purchaser of property having tenants on it.
It was contended that if a tenant be in possession of land which is transferred it is the duty of the purchase& to make an enquiry from the tenant as to the nature and incidents of his title.
Held: Immovable property in a town or an agricultural estate may have hundreds or even thousands of tenants on it. ft cannot be the duty of a person who purchases large property to make an inquiry from every one of the tenants of the property as to any agreements relating to the property which he may possess.
A duty to make enquiry would arise only if there be some circumstance which puts the purchaser on enquiry. That tenants are in possession of the property which is purchased is not a fact which by itself will put the purchaser on enquiry, for this may be and will probably be the normal incident of the property purchased. Property may be in the possession of occupancy tenants, or it may consist of only the rent-receiving interest.
Possession which is prima fade lawful does not call for an enquiry. If, however, a person was in possession without any apparent title, or if the explanation given about the title of such person by the vendor was unsatisfactory there would be good grounds for making further enquiry. The purchaser cannot be penalized unless he has somehow failed in his duty and his duty would not arise unless there is something in the circumstances which puts a person of ordinary prudence on enquiry.
Abdur Razzak howlader Vs. Sk. Muhammad Shafi (1962) 14 DLR (SC) 119.
—An interest created under an agreement for sale of an immovable property does not fall within the definition of “actionable claim.”
“Actionable claim’ as defined in section. 3 of the Transfer of Property Act mean any claim to an unsecured debt or any beneficial interest in any movable property.
Purchase of any interest in any actionable claim is prohibited under this section when the purchaser is a judge, lawyer or an officer of the Court.
Ayaz Bahadur Vs. Abdus Sobhan (1978) 30 DLR 16.
S. 6—Property of any kind may be transferred.
A right to the reconveyance of immovable property, being ever so much more solid than a right of co-entry, should be treated as property. 1952 PLR (Lah.) 196.
S. 6(a)—Transfer of expectancy
Dispute relating to land between mother, stepmother and sister of last male owner on the one side and reversioner on the other—Parties not sure as to their respective shares—Compromise deed executed to avoid further litigation and to put an end to doubts—Deed, not invalid as transfer of expectancy. (1951) PLR (Lah.) 293.
S. 35—Doctrine of election—The beneficiary must give effect to the instrument as a whole.
The foundation of the doctrine of election is that a person taking benefit under an instrument must also bear the burden imposed by it and that he cannot take under and against the same instrument. It is, therefore, a breach of the general rule that no one may approbate or reprobate. The doctrine is based on intention to this extent that the law presumes that the author of an instrument intended to give effect to every part of it.
Md. Kader Ali Vs. Lokman Hakim (1956)8DLR 112.
S. 40—Sale by mortgagor of equity of redemption—Vendee covenanting to reconvey to vendor mortgagor partition of property after redemption—Vendor-mortgagor subsequently selling his right to reconvcyance also to vendee—Earlier sale successfully pre-empted—Pre-emptor selling his rights under the pre-emption decree to mortgagee— Covenant to recovery, though personal, held nevertheless, to be annexed co-ownership of land. 1952 PLR (Lah) 196.
Ss. 40, 54 and 130—Even a benamder can maintain a suit for reconveyance in place of the principal.
In some decisions it has been opined that by express or implied terms in the agreement between the parties this right may be limited within the family of the promisee. Therefore, in the present case in the absence of even such limitation in the agreement the right of rcconvcyancc was assignable and the same was rightly and validly assigned to the plaintiffs. As such the plaintiffs have locus standi to institute the Suit for specific performance of contract against the original vendee.
Seru Mia. Vs. Fajilatennessa & ors. (1979) 31 DLR 159(160).
—Right of reconveyance of immovable properly is an actionable claim in the vendor which can be transferred legally.
Seru Mia Vs. Fajilatennessa & ors. (1979)31 DLR 159.
—When section 130 of the Transfer of Property Act is read with sections 40 and 54 of that Act there remains no doubt that the right of reconveyance of immovable property though not an interest in the land, is an interest very much annexed to the ownership of the land; and this right is an actionable claim in the vendor which is transferable.
Seru Mia Vs. Fajilatennessa & ors. (1979) 31 DLR 159.
—A right under a contract of sale or contract of reconveyance, for all practical purposes, subject to the limitations put under sections 40 and 54 of the Transfer of Property Act, stands at par with “equitable estate” of the vendee under a contract of sale of immoveable property. This right though not an interest in the land, is very much annexed to the ownership of land and this ‘right’ is transferable, assignable.
Seru Mia Vs. Fajilatennessa & ors. (1979) 31 DLR 159.
S. 41—Transfer by ostensible owner.
—The party relying on the section must establish facts which entitle him to the benefits of the rules laid down in the section.
Nazir Ahmed Vs. Benoy Bhusan Saha (1956)8 DLR 159 (266 rt.h.col).
—Real owner, when allows another to hold as the owner of an estate to recover from the purchaser of the pretended owner.
Hamidulla Talukdar Vs. Muslim Khan (1956)8 DLR 606 (608 rt.h.col.)
—Unless he cannot overthrow that the purchaser by showing either that he had directed notice or something which amounts to constructive notice of the real title, or that there existed circumstances which ought to have put him on an enquiry, which if unsecured would have led to a discovery of it, the real owner has no remedy against the purchaser.
Habibullah Talukdar Vs. Muslim Khan (1956) 8 DLR 606 (608 rt.h.coi)
—Transferee from the ostensible owner—When his interest protected.
The husband continued to possess the suit land after settling it to his wife and subsequently the husband sold the same land to X.
Section 41 of the Transfer of Property Act makes it incumbent on the transferee to act in good faith and to take reasonable care to ascertain that the transferor had power to make the transfer. It is obvious that the first step which the transferee is expected to take is to search the registration office to ascertain what transfers, if any, had been made by the transferor. The transferee is not entitled to the benefit of section 41 of the Transfer of Property Act if he or she fails to do so.
Hassan Ali Vs. Azmauluddin (1962)14 DLR 392.
Bonafide transferee—A bonafide purchaser for value without notice of the alleged contract for reconveyance is protected under. section 41 of the Transfer of Property Act.
Tazal Haque Vs. Md. Affan (1965) 17 DLR 613.
—Vendee—When may make enquiries—True owner’s possession—Vendee must enquire as to nature of possession— Protection under the section is lost by negligence.
If there are no circumstances disclosing any reason for going behind the revenue entries, then the vendee is protected if he has bonafide acted on the entries appearing in the revenue records. The authorities do not seem to lay down any principle on the question of implied consent of the true owners; but it is clear that this would be a question to be decided on the facts of each case. It is also clear that the mere entry of the name of the ostensible owner in the revenue record would not by itself amount to implied consent on the part of the true owner, as required by section 41 of the Transfer of Property Act. Therefore, the fact that the true owners had all along been in possession of land was, a sufficiently strong circumstance for the vendees to be put on their guard and to require them to make further inquiries beyond the entries made in the revenue records. This they failed to do with the result that this requirement of section 41 was also not fulfilled by them.
Ilahi Bakhsh Vs. Hassan Khan, PLD 1966 (W.P.) Lahore 654. (Anwarul Haq, J.)
S.43—House by mistake transferred to M. when it was not in compensation pool—House subsequently included in pool—Transfer to M is validated by inclusion.
The principle embodied in s.43 applies to transfer under Act XXVIII of 1958. When the property was put in earmarking due to a mistake in the record of the Deputy Rehabilitation Commissioner, the property did not form part of the compensation pool and by mistake it was transferred to M. Subsequently the property was released by the Central Government on 20.6.1960 and it became a part of the compensation pool. Thus the transfer already affected in favour of the petitioner became a valid transfer on the 20th of June 1960.
Mumtaz Sultana Vs. Settlement & Rehab, Commissioner, PLD 1964 (W.P.) Lahore 388 (Rizvi, J).
—Transferor having doubtful title at the time of transfer—Interest acquired subsequently passes to transferee— Principle of feeding the estoppel.
Under s.43 a transfer by a person of property which he represents and which he is entitled to transfer, but in which his title is doubtful or lacking, will operate on any interest which he may acquire subsequent to the transfer in that property so that the transferee becomes the owner of that interest. Therefore, if at the time when the film was transferred by the transferor he did not have any rights in the film but the rights were acquired later on, they would pass to the transferee when they are so acquired.
S.Sibtain Fazli Vs. Star Film Distributors PLD 1964 Suprem Court 337=1 6 DLR SC 198. (Kaikaus. J).
Doctrine of feeding the grant by estoppel: The doctrine of feeding the grant by estoppel which appears as the solitary illustration to section 115 of the Evidence Act and in section 43 of the Transfer of Property Act is based on the ground that if a person, for value received, conveys what he does not own but subsequently he acquires the title, which he conveyed, then the transferee can enforce the conveyance against him.
Ghulam Md. Shah Vs. Fateh Md. Shah (1955) 7 DLR (FC) 70.
—Estoppel, application and doctrine of
Section 115 of the Evidence Act is not the only section which deals with title by estoppel but there is one other section, namely, section 43 of the Transfer of Property Act which deals with the same thing. However, there is a distinguishing feature. According to section 43 of the Transfer of Property Act, erroneous representation is enough, but under section 115 of the Evidence Act it must be made intentionally and falsely. Where there is no proof of erroneous misrepresentation and the real state of things were known to both the parties, no question of estoppel arises. 6 PLR (Dac) 181.
The section applies to case of fraudulent or erroneous representation made by transferor to transferee. 1951 PLR, (Lah) 307.
—Transferor’s right to the property accruing to him subsequent to his date of transfer endures to the benefit of the transferee.
Musammat Khaleda Razia Khan Vs. Mahtabuddin Chowdhury (1978) 30 DLR (SC) 27.
—A nadabi-deed may be taken to be piece of evidence to strengthen the plaintiff’s claim of title on the principle of feeding the grant by estoppel. Ibid.
—Feeding the estoppel—Ingredients of the principles of feeding the estoppel.
What are required for application of the provision provided in s.43 regarding feeding the estoppel are (a) erroneous or fraudulent representation by a person, having had no title or having imperfect title to certain immovable property that be was authorized to transfer such property; (b) actual transfer of the said property by him for a consideration; Cc) subsequent acquisition of title or any interest by the said person in the said property. On the fulfillment of these conditions the transfer made by the unauthorized person would operate on the title or interest which has been acquired by the said person at the option of the transferee.
Abu Saber Aziz Mahammad & ors. Vs. Govt. of Bangladesh & ors. (1979) 31 DLR (AD) 218.
—It may he said to have been ultra vires of the Government Officer in the sense that the lands in question having been not the Government property, the Government officers were not authorized to transfer the same and no title accrued in favour of the plaintiffs on the basis of such transfer. But the Government having subsequently acquired title to the said transferred lands, there is no bar to the application of the law of feeding the estoppel.
There is no statutory provision suspending the law of feeding the estoppel and creating a bar to the claim of the property on the basis of the said law. Ibid.
—Schedule B lands being accretion to schedule A lands before the Government settled A schedule lands to the plaintiff the latter acquired no right or interest in B schedule lands by virtue of his getting A schedule lands from the Government. Ibid.
S. 44—A member of an undivided family can maintain a suit for injunction restraining a stranger- purchaser of a portion of a joint property from taking possession of the property.
Md. Habibullah Vs. Pranballav (1957)9 DLR 119.
—Instead of availing himself of that right (that is, his bringing of a partition suit for a specific possession of share) if such purchaser tries to take forcible possession a co-sharer can bring a suit for injunction restraining such a transferee from entering into possession of the undivided dwelling house. Ibid.
—With reference to the Partition Act it has been held that the term dwelling house’ includes not only the structure of the building but also adjacent buildings, curtilage, courtyard, garden or orchard and all that is necessary to the convenient occupation of the house; and that the phrase undivided family is not limited to Hindus but includes any group of persons related in blood who live in one house under one head, and that it applies if they are undivided qua the dwelling house which they own. The same construction applies to the words used in this section and it is not necessary that the family should have constantly lived in the dwelling house. Mulla’s Transfer of Property Act : (2nd edition) page 200.
S. 46— “What is reasonable time” in each case depends upon the facts and the circumstance of the case. Fourteen years time to the parties when appears reasonable the Court will not hold otherwise.
Abdul Quddus Vs. Anjuman Khatoon (1984) 36 DLR 312.
—Where no time is fixed for performance of a contract it should be performed within reasonable time.
Section 29 of the Contract Act provides that agreement, the meaning of which is not certain, or capable of being made certain, are void. None of the illustrations (a) to (1) of that section suggests that if the time for performance of contract is not fixed the contract would be void for uncertainty. On the other hand, section 46 of the Contract Act provides that where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time. Ibid.
S. 47—Principle underlying section 47 has no application where transfer of the immovable property has been affected by person who had no such right at the time of transfer.
Mst. Khaleda Rajia Khanun Vs. Mahtabuddin Chowdhury (1978) 30 DLR (SC) 27.
S. 52—Lis pendens—Possession during the pendency of the suit by a party cannot alter the rights of the parties.
The possession which a party to the suit obtains during the pendency of the suit instituted by the plaintiff cannot alter the rights of the parties in the suit, for those must be determined according to the position prevailing on the date of the institution of the suit.
Hochenaddi Sk. Vs. Esmail Sikdar (1957) 9 DLR 294.
—Where a transfer is hit by section 52 of the Transfer of Property Act, the transferee is not entitled to hold his title against a party to the suit sought to be affected by the transfer; for a suit for specific performance of a contract operates as liss pendens.
Atar Ali Vs. Abed Ali (1953) 5 DLR 470.
Lis pendens—The word “contentious” (which was in the section before the amending Act 20 of 1929) in section 52 of the Transfer of Property Act refers to the origin and nature of the plaintiff with reference to (his prosecution. The doctrine, therefore, becomes effective from the very moment of the institution of the bona fide suit which is in no way collusive.
Sachindra Kumar Basu Vs. Sreenath Pal (1954) 6 DLR 550.
—If a suit is dismissed for default and then it is restored, the order of restoration relates back and a transfer after dismissal and before restoration is subject to the doctrine of us pardons. Ibid.
—The decree-holder in the mortgage decree having put the decree into execution, the judgment- debtors applied under section 36 of the Bengal Money Lenders Act to reopen the decree. The decree was re-opened and a new preliminary decree was passed making the decretal amount payable in several installments. Some time before the passing of this preliminary decree, the landlord auction-purchased the holding comprising the mortgage lands at a rentsale.
The judgment-debtor having defaulted in payment of the installment dues a final decree was passed and the decree was thereafter put into execution. The landlord, who became the owner of the equity of redemption and was not made a party either to the preliminary decree or to the final decree, put in an objection under section 47, Civil Procedure Code saying that execution could not lie against him because he was not impleaded in the suit or the proceedings.
Held: The landlord objector having purchased the property during the pendency of the suit, he could not be regarded as necessary party to the suit. He becomes interested in the equity of redemption during the pendency of the suit and hence the Doctrine of lis pendens under section 52 of the Transfer Property Act must operate as a bar to his plea.
Debendra Ch. Saha Vs. Nabin (1955) 7 DLR 186.
Involuntary alienation—It is now well settled that though section 52 itself may not apply to involuntary alienation nevertheless the principle of lis pendens applies to such alienation. Ibid.
—A transfer pendente lite affecting the rights of the other parties to the suit is expressly barred by section 52 of the Transfer of Property Act.
Aminul Huq Vs. SM Ibrahim (1955) 7DLR 535.
—Principle of lis pendens applies in cases of involuntary alienation, though the said section may not apply.
State Bank of Pakistan Vs. Khaledar Ma & others (1962) 14 DLR 734.
Lis pendens—Purchase in a court-sale while a partition suit was pending—Purchaser’s purchase is hit by the doctrine of lis pendens.
Sree Nath Paul vs. Sac hindra Kumar Bashu (1968) 20 DLR 97.
—Transfer of land during the pendency of partition suit is hit by the doctrine of lis pendens.
A partition Suit is a suit in which the right of a party in a property held jointly with others is determined and a Pew and exclusive right is created in favour of a party. Partition suit is a Suit contemplated in section 52 of the Transfer of Property Act.
In this case the petitioners were inducted into the suit land during the pendency of the partition suit without the concurrence of other co-owners and the person who inducted them into the premises has not been given land which is possessed by the petitioners but he has been allotted a different saham. Co-sharer who has been allotted the saham which is in possession of petitioners is entitled to get possession of the saham allotted to him free from all encumbrances. To saddle him with encumbrances created during the litigation would render the principle of doctrine of lis pendens nugatory.
Wajed Ali Vs. Sudhi Chandra Das (1968) 20 DLR 513.
Principles of Lis pendens—Its application limited to immovable, property—In matters of conjugal relationship, it has no application.
Nelly Zaman Vs. Giasuddin Khan (1982)34 DLR 221.
—The word “transferred” in s. 52, TP Act, contemplate s transfer by sale, gift, mortgage, lease and exchange.
The word ‘transferred’ means such transfers as are contemplated by the Transfer of Property Act such as, sales, gifts, mortgages, leases and exchanges.
Md. Abdur Rouf and others Vs. Ahmuda Kkatun and others (1981) 33 DLR (AD) 323(324).
—A transfer of the land in suit being the subject matter of the pending Suit is hit by the doctrine of (is pendens and, as such, such a transfer is not valid in law. And, consequently, such a transferee cannot apply under Or. 1, r. 10(2), CP Code to be impleaded as a party to the suit.
Jamaluddin Vs. Rabeya Begum (1980)32 DLR 63.
—Transfer of suit land by third party pending suit—Section does not apply.
Where the suit land was transferred pending the Suit by a person who was not a party to the suit, the section does not apply to the case.
Abdul Hakim Vs. Ali Muhammad PLD 1965 AK 1(BB). (Hamid, CJ).
Ss. 52 and 2—Transfer governed by Muslim Law—Doctrine of us pendens does not apply—Donee under Muslim Law may transfer property pending suit for resumption of gift by donor.
Section 2 of the Transfer of Property Act lies down that nothing in the Second Chapter of the Act shall be deemed to affect any rule of Muslim Law. Section 52 occurs in Chapter II of the Transfer of Property Act. It is clear, therefore, that if there is a rule of Muslim Law on the point under discussion here, then ,the principle embodied in section 52 of the Transfer of Property Act cannot be invoked. Therefore, where the donor acting under Muslim Law had delivered the possession of the property gifted to the donee, but subsequently he brought a s i for resumption of the property by revoking the gift—
Held: The donees were competent to alienate the property in dispute during the pendency of the suit, as there was no order of the Court to the contrary. The gift could not, therefore: be revoked by the donor for the reason that the thing given had passed out of the donees’ possession by sale, a sale which was not hit by section 52 of the Transfer of Property Act.
Ghulam Qadir Vs. Ghulam Husain, PLD 1965 (WP) Lahore 200 (Anwarul Haq). J).
S. 52—Transfer of assets of firm pending suit for declaration that firm stands dissolved—Transferee acquires no right or interest in property.
Where a suit was pending for a declaration that a firm had been dissolved and also for rendition of accounts and the property of the firm was transferred pending the suit. It was held that the transferee of the property did not acquire any right or interest in the property.
Usman Vs. Haji Omer PLD 1966 (SC) 328 (Hamoodur Rahman, J.)
S. 53A—Specific performance of the contract—Bonafide transferee.
In a Suit for specific performance of a contract for sale or lease a subsequent ‘bona fide’ transferee for value without notice of original contract is an interested party; for a subsequent transferee for value, who has paid his money in good faith without notice of the original contract is entitled to hold his title against the plaintiff in a Suit for specific performance of the contract.
Atar Ali Vs. Abed Ali (1953) 5 DLR 470.
—Unregistered document.
An unregistered document could be received in evidence in a Suit for specific performance.
Dula Mia Vs. Haji Md. Ebrahim (1956)8 DLR 6(6.
—The principle of part performance embodied in section 53A can only be pressed into service as a shield by a defendant to protect his possession of property which has been conveyed to him for consideration but of which the legal title has not vested in him owing to some formal defect like lack of registration of the instrument of transfer. Where the contract of transfer was ab initio void the principle has no application. 1951 PLR (Lah) 307.
—An agreement of sale followed by possession No transfer of interest in the property.
In an agreement of sale followed up by possession to the purchaser apart from the provisions of section 53A T.P.Act., the document itself does not constitute a transfer of any interest in the property.
Enayet Hossain Vs. Member, Board of Revenue (1960)12 DLR 466.
—A person who has taken possession under an unregistered lease which under section 107 of the Transfer of Property Act is required to be registered, can protect his possession on the plea of part performance under section 53A of the Act, provided he fulfils the conditions laid down therein. If a person has failed to pay the rents due it can not be said that he has fulfilled his part of the contract.
Girindra Chandra Vs. Kumud Behari (1952)4 DLR 623.
—Proviso to section 49 of the Registration Act allows an unregistered deed which is required to be registered to be used as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract for the purpose of section 53A.
Girindra Chandra Vs. Kumud Behari (1952) 4 DLR 623.
—In a contract of sale when transferee paid the full consideration money and got possession of the disputed land, he is entitled to the protection of sec. 53A of the Transfer of Property Act and Art, 113 of the Limitation Act has no application to such a claim of the transferee.
The right conferred by this section is available for a defendant to protect his possession. For the purpose of protecting his possession the section operates as a bar to the plaintiff asserting his title. In the facts of the present case the plaintiff is barred under section 53A from asserting his title and he is not entitled to get a declaration that he has his right and title in the disputed properties.
Abdul Gani Khan Vs. Din Bandu Adhikari (1962) 14 DLR 663.
—Property means the right in the property transferred and the remedy of the transferor is barred only with respect to the right that stands transferred by the deed. The provision of section 107 is not in conflict with that of section 53A of the Transfer of Property Act nor is the provision of section 17 of the Registration Act. Provision of section 53A does not create right or interest in violation of provision of section 107 and section 17, Registration Act.
Abdullah Bhai Vs. Ahmad Din (1964) 16 DLR (SC) 169.
—Section 53A of the Transfer of Property Act makes an exception in favour of the transferee in possession in respect of a document which requires registration.
Section 49 of the Registration Act no doubt, provides that if a document, which is compulsorily registerable, is not registered, then such a document does not affect any rights in the property dealt with under such a document. But section 53A of the Transfer of Property Act makes an exception to this and provides that where a person obtains possession of or continues to remain in possession of a property under a document in writing which, though compulsorily registrable, has not been registered, then neither the person transferring the property nor anyone claiming under him shall be entitled to enforce against the transferee or any person claiming under him any right in respect of that property.
Mst. Ghulam Sakhina Vs. Umar Bakhsh (1964) 16 DLR (SC) 38
—Deed (unregistered) of exchange, missing—Its terms sought to be proved by witnesses who never read its contents—Secondary evidence inadmissible.
Mokim Mondal Vs. Ali Miah Pradhan (1966) 18 DLR 386.
—Conditions for entitlement of the benefit of part performance.
Under section 53A of the Transfer of Property Act a person in order to entitle himself to the benefit of the doctrine of part performance must show, inter alia, that the contract involved has been reduced to writing and signed by the person making the contract or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
Mokim Mondal Vs. Ali Miah Pradhan (1966)18 DLR 386.
—Agreement of purchase accompanied by possession.
Agreement of purchase followed by possession in part performance of the contract for sale does not make the person in possession of such property as one in unlawful possession and therefore, such person has prima facie right over the property, if he can clearly establish his possession over the property.
Kazalul Hussein Chowdhury Vs. Dy. Custodian, Enemy Property (1970) 22 DLR 345.
—Protection under s.53A, Transfer of Property Act available to transferee both as plaintiff as well as defendant in suit by or against him to shield his title to property—Lessee in possession—Lease deed unregistered—Lessee, held, entitled to use unregistered lease as shield to prevent transferor from enforcing any right except those arising under such lease.
The Pakistan Employees Co-operative Housing Society Ltd. (Karachi) Vs. Msi. Anwar Sultana (1969)21 PLD Karachi 474.
—Relief obtainable under section 53A is not only available, by way of defense, to a defendant but can equally be invoked by a plaintiff where circumstances entitle him to claim the same.
If the transferor, without taking recourse to law Courts, becomes aggressive and tries to dispossess the transferee in possession by force, it does not seem to be in consonance with good reason that the transferee in possession should not be able to prevent the transferor from committing aggression upon the property in question and protect his own possession by invoking the principle of section 53A of the Transfer of Property Act, by himself instituting a Suit as the plaintiff and obtaining the necessary restraint order against the would-be aggressor in the said suit.
Mrs. June Ferguson Vs. Ameenur Rasheed Chaudhury (1973) 25 DLR 1.
—Interest visualized in s.53A TP Act is neither a protected interest nor an encumbrance (within the meaning of these terms in sections 160 and 161 B.T. Act) and therefore an auction purchaser in a revenue sale gets the property free from any interests created under section 53A.
Julfu Molla Vs. Noab Ali Sarkar (1975)27 DLR 441.
—Right created u/s 53A—It is not an interest under clause (g) of section 160 of the Bengal Tenancy Act—Interest contemplated u/s 161 B.T. Act is a subordinate interest whereas under section 53A what the tenant intended to do was to transfer his whole interest. The kabala was not in limitation of the tenant’s interest but was a transfer of his entire interest. An interest under section 53A cannot be an encumbrance.
Julfu Molla Vs. Noab Ali Sarkar (1975) 27 DLR 441.
—Applicability of section 53A—Whether right under sec.53A is a legal right or an equitable or a contractual right.
The question, which now arises is whether the Government of Bangladesh can completely ignore the written agreement under which the appellant entered into the possession of the property concerned on part payment of the consideration money.
Under Article 4 of P0 16 of 1972 the industrial unit concerned vested in the Government which acquired the right to administer, control, manage and dispose of by transfer or otherwise the said properties in accordance with the provisions of said Order.
Buxly Paints (Bangladesh) Ltd. Vs. Bangladesh (1979) 31 DLR (AD) 266.
—Under the general law the Govt. which has stepped into the shoes of the Pakistani company, the original owner of the industrial unit, cannot exercise its right of possession as against the Bangladesh company by virtue of section 53A of the Transfer of Property Act which creates a positive bar to the exercise of any right including that of taking possession in view of the agreement for sale of the industrial unit between the Pakistani Company and the East Pakistani Company, in part performance of which the East Pakistan Company was inducted into possession and as such the Govt. is not entitled to interfere with the possession of the appellant Company in respect of the industrial unit in its possession.
Buxly Paints (Bangladesh) Ltd. Vs. Bangladesh (1979) 31 DLR (AD) 266.
—In Bangladesh when such right arising from part performance of a contract has been given a positive statutory shape in section 53A of the Transfer of Property Act, such right issues from a positive legislative enactment and is not founded merely on equity or a contract.
So long as the agreement remains in force and the party in possession is agreeable to perform his part of the contract, his possession cannot be interfered with by a party to the said contract or any person claiming under the said party.
Buxly Paints (Bangladesh) Ltd. Vs. Bangladesh (1979) 31 DLR (AD) 266.
—Contract by part performance, must be evidenced by writing signed by the person who contracted to transfer.
Mehar Khatun Vs. Sarat Kumar Kanungoe (1984)36 DLR (AD) 217.
—Section 53A of Transfer of Property Act affords protection to a transferee in possession of immovable property as against the transferor or any person claiming under him when under a written contract the transferee in part performance of the contract takes possession of the property or any part thereof although the contract though required to be registered has not been registered or where there is an instrument of transfer, the transfer has not been completed in the manner prescribed thereof by the law for the time being in force.
Joyanta Bijoy Chakraborty Vs. Gopesh Chandra Chakrabarty (1983) 35 DLR 319.
—Defense under the section not set up in suit by ‘proforma’ defendant—Cannot raise plea during execution proceeding.
Where the protection under s.53A was first raised as a defense in the execution proceedings by a proforma defendant in the suit.
Held: If she had any such right, the same should have been set up as a defense in the suit itself. That not having been done, she is debarred from claiming the said protection now after a decree has been passed against her as well for specific performance. The decree of specific performance is conclusive and binding upon the appellant and she cannot be allowed now in the execution of the said decree to have the decree re-opened and the question reagitated.
Birgis Jahan vs. Mohd. Hasan PLD 1964 Dacca 202 (DB). (Rahman, J).
—Land sold by evacuee’s years before. partitions—Custodian can only claim balance of sale price—Cannot claim such property.
Where the evacuees had sold land to the locals long before partition, the only right which the evacuee heirs of the vendor possess in the land in question was the right to receive the balance of the sale price, and not the right to dispossess the petitioners. It is only this right that must be deemed to have vested in The Custodian under section 7 of the Act and no more. Viewed in this light there is no conflict between section 53A of the Transfer of Property Act and the relevant provisions of Act XII of 1957. Therefore, the vendees have a right to keep the land and the Custodian can only claim the balance of the sale price.
Muhammad Vs. Custodian of Evacuee Property, PLD 1962 (WP) Karachi 312 (DB). (Anwarul Haq, J.)
—Oral agreement of transfer— Transferee in possession prior to suit but not in possession at time of suit—Benefit of section not available.
The first essential requirement mentioned in the section is “where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with certainty’ In the present case, there is no writing at all signed by the transferor or on his behalf. The second requirement mentioned in the section is that “the transferee has in part-performance of the contract taken possession of the property or any part thereof or the transferee being already in possession, continues in possession in part-performance of the contract and has done some act in furtherance of the contract”. In the present case, although the defendant-appellant did come into possession of the disputed property for some time, yet at the time of the institution of the suit the appellant was admittedly out of possession. Such being the case even the second requirement laid down in the section is not fulfilled. For these reasons, section 53A is clearly not attracted to the case.
Noor Mohd. Vs. Ghulam Masih Gill PLD 1965 (WP) Baghdad-ul-Jadid 1. (Anwarul Haq, J).
—A plot obtained by exchange—Part performance of agreement of exchange— Benefit of s. 53A available to transferee.
Where the plot was obtained in exchange for another plot and some structures were built on it in part-performance of the agreement of transfer. The transferee can enforce the specific performance of the agreement of transfer and take benefit of the provisions of s.53A.
Usman Vs. Haji Omar PLD 1966 SC 328. (Hamoodur Rahman, J).
—Scope—Section does not create rights for making a claim—Only provides defense for transferee.
Section 53A of the Transfer of Property Act does not create a right for making a claim but only affords a defense against the transferor if he attempts to enforce a right other than one that is provided in the contract, in respect of the property of which the transferee is in possession.
Anwar Sultana Vs. Pak. Co-op. housing Society Ltd., PLD 1964 (W.P.) Karachi 116 (Qadeeruddin,J.)
—A sale of land by unregistered. deed without delivery of possession—Subsequent sale by registered deed—Subsequent sale has precedence.
Where the previous sale of land was by an unregistered deed and possession was not delivered in consequence thereof and subsequently the same land was sold to another person by a registered deed. It was held that the subsequent sale has precedence over the previous sale.
Pordil Khan Vs. Sufaid Gui. PLO 1965 (Pesh) 259. (Bashiruddin, J)
—Scope—Gives protection to transferee—Does not transfer title to property in the absence of registration.
All that section 53A, Transfer of Property Act, 1882 does is to protect the transferee against the transferor or any person claiming under him from enforcing any right in respect of the property notwithstanding the fact that the contract, though required to be registered, had not been registered or where there is an instrum net of transfer the same has not been completed in the manner prescribed thereof by the law for the time being in force. This protection is given to the transferee upon the fulfillment of the condition set Out in that section and upon the principle that equity looks on that as done which ought to & done. If the transferee is ready and willing to do all that he is required to do under the contract, it should not lie in the mouth of the transferor or any one flaming through him to plead absence of registration or compliance with other formalities to get out of his own obligation under the contract. This section nowhere professes to transfer the title to the purchaser.
PT Co-op. Housing Society Ld. Vs. Manzoor Ahmed PLD 1961 (WP) Karachi 53 (Faruqui, J).
—Transfer by unregistered deed where it should have been registered—Transferor cannot enforce any rights under the deed— Transferee may sue for specific performance of contract of sale.
Under section 53A, a person who had made a transfer of some property by means of an unregistered deed, when under the law the transfer should have been made by means of a registered deed, is debarred from enforcing any right in respect of the property if the transferee has in part performance of the contract taken possession of it. When a transferee by means of a document which has not been registered, though under the law that document was compulsorily registerable, comes to Court as a plaintiff and bases his claim on part performance of the contract of transfer, he is using the part performance of the contract as a shield and not as a sword as his object is only to defend his own title and not to attack the tide of anyone else. Therefore the transferee can sue for the enforcement of a contract of sale even when it is not duly registered.
Inayat Ullah Vs. Shah Muhammad PLD 1961 (WP) Lahore 372 =PLR 1961(2) WP 525(08) (Shabir, J).
—The vendor cannot take shelter behind the doctrine embodied in section 53A of the Transfer of Property Act. That provision is intended for the benefit of vendees alone so as to protect them against the vendors.
Manzoor Ahmad Vs. P & T Cooperative housing Society Ltd. PLD 1962 (WP) Karachi 476 (DB). (AnwarullIaq. J).
—Where the transferee has made part payment of the consideration and is already in possession he is entitled to the protection granted by this section.
Ghulam Hussain Vs. Ghulam Mohd, PLD 1964 BJ. 19 (UB). (Faruqui. J).
S 54—A contract of re-conveyance of a property does not create any interest to the property— Rule against perpetuity has no application to an agreement when such agreement does not create any interest in the land.
Abdul Quddus Vs. Anjuman Khatoon (1984)36 DLR 312.
—Registration not enough to pass title.
Where there is neither possession of the property alleged to have been sold, nor any proof of the payment of consideration mere registration of the sale-deed does not operate to pass title to the vendee. Ibrahim Vs. Sardar Ahmed (1955) 7 DLR (WP) 62.
—It cannot be laid down a general rule that mere registration of an instrument “without reference to other circumstance operates to transfer the property.
Ainuddin Vs. Samaddi Hajari (1955) 7 DLR 443.
—Where a deed of sale collusively created to defeat the title of the defendant by ante-dating the same to a date prior to the date of the execution and registration of the defendant’s document, it cannot be said that mere registration has the effect of transferring title.
Ainuddin Vs. Samaddi Hajari (1955) 7 DLR 443.
—Although under section 54 of the Transfer of Property Act a condition of re-purchase does not create an interest or charge on the immovable property concerned, it is a benefit annexed to the ownership of land, and unless the contract is induced by considerations which are personal to the vendor, it is assignable.
If it appears that the option is given as a matter of grace or favour it will be restricted to the vendor personally and will not be assignable but if it is not induced by any such consideration but in fact a part of the bargain the beneficial interest created by the contract is assignable. I PLR (,Dac) 349.
—According to this section, sale is a transfer of ownership in exchange for a price not in exchange for land, and there is abundant authority for the view that “price” in this context means” money”, not anything else. 1952 PLR (Lah) 196.
—Conveyance and contract of sale—Statements in a document which convert it into a sale-deed and not a contract of sale.
Enayet Hossain Chowdhury Vs. Member, Board of Revenue (1960) 12 DLR 466.
—If a vendor can convey a property without an instrument of sale-deed he can do it and can escape payment of stamp duty.
Enayet Hussein Chowdhury Vs. Member Board of Revenue (1960)12 DLR 466.
—An agreement for reconveyance of land is not a right in property.
Abdus Sattar Mallik Vs. Yunus Mallik (1960) 12 DLR 849.
—A sale may be complete even if the ingredients of section 54 not complied with.
The mere failure of the parties to comply with the requirements of section 54 of the Transfer of Property Act as to the manner in which the transfer should be made cannot alter the nature of the transaction intended to be entered into between the vendor and the vendee or affect the pre-emptor’s right in respect of it.
If the transaction amounts to a sale in fact then notwithstanding that it is not in the form prescribed by section 54 of the Transfer of Property Act the right of pre-emption will come into operation.
Abdul Karim Vs. Fazal Muhammad Shah (1967) 19 DLR (SC) 477.
—Agreement for sale of land binds the purchaser at Court sale with notice—the agreement for sale would bind the purchaser at a Court sale if he had notice of the agreement.
Mohiuddin Mollah Vs. Province of East Pak. (1962)14 DLR (SC) 112.
—A sale of immoveable property accompanied by an ekrarnama—In case of a sale
of immoveable property accompanied by an ekrarnama, for the rcconvcyance of the same property to the vendor, a subsequent purchaser of the vendor’s right, he being the successor-in-interest, is entitled to enforce the right of reconveyance against the original vendee.
Jalal Ahmed Vs. Thoraish Mia (1968) 20 DLR 80.
—Subsequent registration of Kabalas without payment of consideration money for curing defects of earlier lease deeds cannot be called sale-deeds and as such pass no title.
The plaintiff took bandabasta of the Suit property by registered lease deeds. But finding the lease deeds legally defective, the lessors subsequently transferred their interest in the property by registered Kabalas in favour of the plaintiff.
Held: The Kabalas cannot be called sale-deeds and they pass no title.
Makbul Ahmed Contractor Vs. Md. Idris (1969) 21 DLR 511.
—‘Sale’ explained.
Sale means a transfer for a fixed or ascertained price and it takes effect in the year in which the price is so fixed for till then there is no sale and the asset, unless destroyed, demolished or discarded, continues to be deemed to be in the use of the assesses.
M/s. Chittagong Engineering & Electric Supply Co. Ltd. Vs. Income Tax Officer, (1970) 22 DLR (SC) 443.
—Mere execution and registration of a sale-deed ipso facto does not pass title to the purchaser. Intention is consideration paramount and it can be inferred from circumstances.
Mahar Ali Mathar. Vs. Daliluddin Chowkidar (1979) 31 DLR 392.
—Right of reconveyance a transferable Right.
A right to reconveyance cannot but be assignable, unless the terms of the contract manifest an intention to restrict the right to the transferor personally.
Saukat Ali vs. Shamsun Bibi (1975) 27 DLR (SC) 59.
—Sale of property worth more than Rs. 100—Not sale for purpose of preemption.
Section 54 of the Transfer of Property Act, ‘1882, enjoins that sale of any immovable property worth more than Rs.100/- can be effected only by a registered deed and so, in a place where (he provisions of section 54 of the Act is in force, sale of immovable property worth more than Rs. 100/- not complying with the provision of the section is not a sale for purposes of suit for pre-emption.
Jangi Vs. Jhanda PLD 1961 Baghdad-ut-Jadid 34 (DB). (Shabir,J).
Ss. 54, 53—Oral transfer of land—No interest passed to transferee—Principle of part performance is not applicable.
Where the transfer of land was affected by an oral agreement and it was sought to be enforced on the plea of part performance of sale.
Held: The plea of part performance cannot have the effect of abrogating the provisions of the Registration Act or the Transfer of Property Act by creating an interest which under these Acts can only be created by a registered instrument.
Sohna Vs. Allah Dad, PLD 1962 Baghdad-ul-Jadid 17 (DB) (Bashir Ahmad, J).
The same was held in Manzoor Ahmed Vs. P & T Co-operative housing Society PLD 1962 Kar. 476 (DB). (Anwarul) Haq. J).
S. 54—Oral sale of land—Right of pre-emption may be exercised in respect of sale.
No doubt, a sale made in violation of the provisions of section 54 of the Transfer of Property Act would not be a valid sale, but if the law of preemption permits that a sale, which is otherwise complete, can be pre-empted and if the pre-emptor is prepared to take over (he defective title of the vendee, he cannot be prevented from doing so, simply because the vendor and the vendee have colluded with each other to deprive him of his rights. Whatever rights are possessed by the vendee, under such a defective sale, would go to the pre-emptor, if he succeeds, and if he is prepared to take that risk, it is not for the vendee to say that his title is defective and that, therefore, the defective title cannot be passed on to the pre-emptor.
Gullan Vs. Mow. Ramzan PLD 1962 (WP) Baghdad-ul-Jadid 33 (DB). (Masud, J).
S. 55—The principle embodied in section 55 regarding charge of the purchase money on the property sold in favour of the vendee, cannot be invoked in respect of an illegal contract which is void admit b. 1951 PLR (Lah) 307.
—An agreement for sale is in fact a promise to transfer ownership of the land and if by the sale-deed the land in fact has not been transferred a breach of contract would appear to occur (he moment the sale deed is executed which has not the effect of transferring the promised title. 1953 PLR (Lah) 689.
—Decree was for specific performance of contract for sale of land—Decree did not contain any direction for delivery of possession—The decree-holder is entitled to delivery of possession without such direction.
Jahiruddin Ahmed Vs. Joynal Abedin Khan (1962)14 DLR 739.
—“Document of title”—Income-tax clearance certificate and Custodian’s certificate—Are not such documents—Vendee not entitled to insist on “examining” such documents but only to be satisfied that vendor has obtained them.
Abdul Hamid Vs. Abbas Bhai Abdul Hussain Sodawaterwala (1962)14 DLR (SC) 24.
Ss. 55, 58—Sale with condition of repurchase—Repurchase can be enforced only by strict compliance with agreement. As a simple agreement for reconveyance the right of repurchase given to the plaintiff cannot but be a special privilege or a concession given to him and if the plaintiff wants to take advantage of that special privilege and concession he must strictly conform to the terms of the agreement.
Abdur Rahman Vs. Raji Ranga Laskar PLD 1964 Dacca 230(DB)=PLJ? 1963 Dacca 496. (Chaudhury, J).
S. 55(1)—Income-tax certificate stipulated to be produced by seller—Not produced—Buyer may rescind contract of sale. Where an agreement of sale of land provided for the securing of a no-objection certificate from the author ties by the seller as well as the making out of a marketable title, but the seller was unable to secure the certificate and unable thus to make out a marketable title.
Held: That the seller had committed a breach of the terms of the agreement. P & T Co-op. Housing Society Lid. Vs. Manzoor Ahinad PLD 1961 (W.P) Karachi 53. (Faruqui, I).
S. 55(2)—Apprehension that land agreed to be purchased is to be acquired by Development Authority—Purchasers may rescind contract. The purchasers were entitled to rescind the contract of sale in view of the threat of the acquisition of the lands in question. The plaintiffs would be entitled to take the attitude that they were not going to purchase the land which was under the cloud of requisition and that they were not going to wait and see what course these apprehended proceedings were going to lake.
P & T Co-op. Housing Society Ltd. Vs. Manzoor Ahmad PLD 1961 (WP) Karachi 53.’ (Faruqul, J).
—Where the seller not having title to the property sells the same, the buyer is entitled to recover the consideration money from the seller, and the question of limitation for the filing of the Suit to recover money in such a case does not arise.
Jahura Bibi alias Bani Bibi Vs. Saijuddin Khalifa (1965)17 DLR 216.
—Material defect in the title to the property—Repudiation of contract.
An agreement was executed by the defendant for sale of a Certain property to the plaintiff. A certain amount was paid by the plaintiff as earnest money. The registration of the document for sale was to be completed by certain fixed date.
In the meanwhile before the arrival of the date for the completion of the transaction, namely, the execution and registration, etc., the Government published a notice that a development scheme has been framed which proposed the acquisition of the property contracted to be sold to the plaintiff. The plaintiff thereupon refused to complete the sale on the ground that the notice referred to above constituted a material defect in the title to the property and demanded the return of the earnest money.
Held: By the issue of the notice a material defect was created in the title which the vendor was capable of passing on the due date. Time being clearly of the essence of the contract, the purchaser was within his rights to rescind the contract at once, and the forfeiture of his earnest money was, therefore, not in accordance with the relevant stipulation in the contract.
Associated hotels of India Ltd. Vs. RB Jodha Mal Kothalia (1954) 6 DLR (FC) 168.
—The undertaking clearly indicates that the contract was subject to title being approved by the purchaser and that this was a term in the contract. Ibid.
—Though the vendor had good title at the time of contract for sale he was not in a position to give the vendee at the time fixed for the completion of the sale, a tide free from reasonable doubt, owing to the material imperfection that set into it as a result of the notice by the Government for the acquisition of the property. The vendee was, therefore, entitled to repudiate the contract and claim back the earnest money. Ibid.
—The matter is different where what the vendee desires is a piece of property, and in the result he stands to get a property different from what he contracted to get or believed that he would get under the contract. Where the vendee is faced with the prospect of being left with nothing but a sum of money as a result of his entering into the transaction, e.g. a sum by way of compensation assessed according to law the difference is even more marked. Ibid.
—Covenant to indemnify is distinguishable from covenant of title. Former does not run with property sold, and benefit of it does not pass to subsequent transferees unless specially assigned— Remedy of subsequent transferee—By suit for money compensation against his own transferor. 1956 PLR (Lah) 1840.
S. 55(4)—Part of sale price left with vendee to be paid to a previous mortgagee, remaining unpaid—Amount unpaid is part of consideration of sale and is a charge on property sold. 1955 PLR (Lah) 772.
Ss. 55(4)(b)—Money decree creating a charge only on the suit property—Cannot be enforced for the purpose of selling the property.
Where a decree is a money decree together with a declaration of charge in respect of the decrctal amount upon the plaint properties, unless a decree was passed specially for sale of the properties mere creation of charge does not, of itself, operate as a decree for its enforcement.
Abdul Jubbar Vs. Abdul Aziz (1967) 19 DLR 7.
—Applicability of the section—Clause (4)(b) of section 55 of the Transfer of Property Act is applicable where ownership of the Suit property has passed to the buyer before payment of the whole of the purchase money.
Mahar Ali Matbar Vs. Daliluddin Chowkidar (1979)31 DLR 392.
S.56—Marshalling by a subsequent purchaser.
There is no reason why the equitable rule of marshalling by a subsequent purchaser embodied in section 56 of the Transfer of Property Act should not be extended to sales other than private sales.
Mahtabuddin Vs. Nim Chandra Sachi (1952) 4 DLR 95.
—Accordingly though a decree-holder has a right to have all the properties mortgaged to him put up for sale, it is entirely in the discretion of the Court to direct in which order the properties should be sold, if by such direction, the Court can give relief Co deserving parties without any prejudice to the interest of the decree-holder. Ibid.
S. 58—Mortgage and paramount title.
Where neither party objected in the Court’s going into the question of paramount title in a mortgage suit and it was contended in the High Court in second appeal that the Courts below committed an illegality in entering into the question of paramount title in a mortgage suit;
Held: If it does not lead to confusion and inconvenience then the Courts arc entitled to go into the question of paramount title in a mortgage suit to satisfy the ends of justice.
Held further: A mortgagee who is in possession of the land is in no way estopped from questioning title for the mortgagor as a paramount titleholder in the suit land. I PLR (Dat) 606.
—The mortgage of a lease in any of the six forms specified in the Transfer of Property Act is not an absolute assignment and does not create privity of estate between the lessor and the mortgagee.
Harados Dc Vs. Moazzam Hossain (1954) 6 DLR 220.
—The prior mortgagee without impleading puisne mortgagee got decrees and purchased mortgaged property. The puisne mortgagee brought a suit on his mortgage, got decree and obtained possession through Court before the decrees and possession of the prior mortgagee. The purchaser of the mortgaged property in puisne mortgagee’s decree brought a suit for possession against the prior mortgagee’s purchase at a time when the prior mortgagee was barred by time. The prior mortgagee cannot claim that purchaser in the puisne mortgagee’s decree must redeem his prior mortgage. Where the prior mortgagee was not barred then he can claim, it not being necessary for prior mortgagee to bring a fresh suit.
Md. Danai Vs. Syihet Loan and Banking Co. (1950) 2 DLR 9.
—The true rule is that a mortgagee cannot by a mere assertion of his own or by any unilateral act of his, divest himself of his character as mortgagee and convert his possession as possession of an absolute owner.
Messer Ali Matbar Vs. Jabbar Ali (1955) 7 DLR 103.
—Sale with a condition of repurchase— Difference between a document as one of sale with a condition of repurchase and one of mortgage by conditional sale.
The question is whether the document under reference purports to create a mortgage by conditional sale or sale with a condition of repurchase.
In the margin of the document the word ‘kotkabala’ finds place and in the top margin of the document the word ‘haba-kabala’ occurs, But there are no such words in the text of the document which open with the expression.
Held: If the document is read as a whole it can be found that by the rider clause in the document towards the end it was purported to be a sale with a condition of repurchase.
If the clause of reconveyance is read as a whole it will appear that the power to get the property reconveyed was with the transferor and transferor alone because towards the beginning of the reconveyance clause it has been stated clearly that the transferor or his successor-in-interest could pay back the money but the right to have the property reconveyed was to the transferor himself.
Such use of first person singular in the deed itself cannot give right to a dispute regarding the right to take reconveyance of the property by anyone other than the transferor himself. The language cannot be interpreted to mean that this right to take the reconveyance was given to the successor-in-interest of the transferor. It was thus a personal covenant of the transferor.
Md. Affan Vs. Tazal Hoque (1975) 27 DLR 58.
S. 58(b)—Mortgage security (by deposit of title deeds) furnished for advance of loans already made as well as for those to be made afterwards—All advances on this security shall be on the basis of the single mortgage already made and for limitation the time will run from the date of last advance.
M/s. Tripura Modern Bank Ltd. Vs. Islam Khan (1971) 23 DLR 22.
Simple and usufructuary mortgage—Mortgage—Difference between simple and usufructuary mortgage—Delivery of possession being an essential condition in case of usufructuary mortgage—S subsequent delivery of possession where the mortgage is a simple mortgage will not convert it into usufructuary mortgage. (1956) 8 DLR 599.
S. 58(c)—Mortgage by conditional sale—Test to differentiate between mortgage and s1le.
It appears that at the top of the document Ext. 3(a) there is mention of kot-kabala although in the body of the document it has been described as ???? ?????? ???????? ????????. It has also been stated in the document that the transferee would be entitled to mutate his name in the Sherista of the landlord and to enjoy the properties as his own with the right of inheritance and that he would be entitled to possess, settle, etc. In the last part of the document it has stated that in case the transferor or his heirs repay the consideration money, the sold land would be released.
Thereafter again it has been stated that the document has a kabala. The word ‘khalash” is also quite prominent in the document.
By reason of the confusion created as a result of use of the expressions like “khalash, kabala, kotkabala, sale,” it became essential to enter into the intention of the parties.
In the instant case before us we find that the following elements arc in favour of the plaintiff:
1. inadequacy of price;
2. no time limit;
3. purchase of stamps and payment of registration costs by mortgagor (should be taken as indicative of mortgage);
4. stipulation of repurchase in the same document; and
5. use of the expression kot-kabala” in the very body of the document and not merely in the margin as in the other case.
There are again certain other additional features, namely, that the transferor continued to pay rents. Then again mukti patra executed by the transferee shows that the document was a kot-kabala.
In these circumstances, it must be held that the present is a case of mortgage by conditional sale. When the integrity of the mortgage has been split up by redemption of a part of it, partial redemption of the remaining part can be allowed.
Tazel Hoque Vs. Md. Affan (1968) 20 DLR 282.
—Sale or mortgage. Tests to ascertain whether a deed is a sale-deed or mortgage by conditional sale.
Question whether a particular document is a mortgage or a sale has to be determined with reference—
(1) To the terms of the document itself with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to the existing facts;
(2) With reference to another fact viz time elapsed from the time when the bargain was made between the parties to the time when the present suit was instituted;
(3) The tests for determination of the question are not the same in this country as in England;
(4) The applicability of Bulter’s test;
(5) The court must find the substance behind the form.
Girish Ch. Roy Vs. Hassan Mia (1950) 2 DLR 290.
—In constructing a document the following recitals in the document should be taken in-to consideration
(i) If within the period fixed the executants do not redeem the Kot then the absolute maliki right shall accrue to the recipients;
(ii) If the document begins and also ends with word kot-kabala and there is no such word as is found usually in a sale deed “bikray kabala” or kabala.
(iii) The mere fact that the period mentioned is a short one is not conclusive to show that the transaction is a sale.
(a) The fact that the recipients of the documents bear the cost of registration is not sufficient alone to convert a transaction into a sale.
(b) The fact that there is no stipulation for payment of interest is also of no avail to convert the transaction into a sale.
Girish Ch. Roy Vs. Hassan Mia (1950)2 DLR 290.
Sale or mortgage—A sale with a condition of repurchase is not a mortgage. The distinction between a sale and a mortgage is one of intention.
Abdul Hafiz Chowdhury Vs. Samer Ali (1952) 4 DLR 126.
—Various tests which have been devised for determining whether the intention is to mortgage or to sell are; (i) the existence of a debt, (ii) the period of repayment—a short period being indicative of a sale and a long period of a mortgage; (iii) possession of the property, the continuance of the grantor in possession indicating a mortgage (iv) existence or otherwise of a stipulation for payment of interest or reconveyance, a stipulation for interest or repayment indicating mortgage. (v) adequacy or inadequacy of the consideration, a price below the true value indicating mortgage, (vi) presence or otherwise of the stipulation of conveyance in the document itself, the stipulation of reconveyance embodied in the deed prima facie indicating that the transaction is a mortgage; and (vii) purchase of stamps and payment of registration costs, the same if done by the transferee being indicative of a sale.
Abdul Haflz Chowdhury Vs. Samer Ali (1952) 4 DLR 126.
—The adequacy or inadequacy of the price is a test which must be cautiously applied. In deciding a question whether a transaction is a sale or a mortgage, the Court must find the substance behind the form. Ibid.
—The adequacy or inadequacy of the price on transfer is a test which must be cautiously applied for, in ascertaining the amount of the consideration, the right of the repurchase, which must necessarily fetter the ownership of the buyer, is never left out of consideration and mere inadequacy of the price, unless it is very great, is not, therefore, a safe test. It is also now well-established from decided cases that a longer period for reconveyance indicates a mortgage, while a short period indicates a sale.
Abdul Majid Vs. Serajuddin (1952) 4 DLR 478.
—In absence of a stipulation that the recipient will have to reconvey the disputed property in the same state and condition as it was taken from the vendors at the date of the sale, the agreement is a mere personal covenant and cannot convert a sale to one of mortgage by conditional sale. Ibid.
—Embodiment in the document of sale of the condition of repurchase as provided for in the new proviso to clause (c) of section 58 is not a decisive test. The effect of the proviso is that if the condition of repurchase is not embodied in the document, the transaction will not be regarded as a mortgage but it does not follow that if the condition is embodied in the document the transaction must necessarily be a mortgage. Abdul Haflz Chowdhury Vs. Samr All (1952) 4 DLR 126. Abdul Majid Vs. Serajuddin (1952)4 DLR 478.
—If a document prima fade appears to be a mortgage, it is nevertheless open, to the other side to show that it was intended to be an out and out sale.
Two documents, one a sale-deed followed by an agreement to re-transfer the property, do not constitute a mortgage unless it appears from the documents in the light of the surrounding circumstances that the parties intended the transaction to be a mortgage and in a suit for redemption instituted many years after the transaction, cogent reasons of such intention are necessary. The fact that there are two documents instead of one does not make any difference.
Chandra Kanta Howlader Vs. Rama Prasanna Ganguly. (1953)5 DLR 29.
—Though the transaction may in fact have been a mortgage, yet, when the condition of re-sale is not embodied in the document that effects or purports to effect the sale, then the transaction cannot be treated as a mortgage.
‘The rule laid down in the proviso to clause(c) of section 58 is a rigid one and unless the stipulation regarding reconveyance is embodied in the document of sale, the transaction (entered into after the date on which the proviso was incorporated by the Amending Act of 1929). will not be treated as a mortgage, the intention of parties or the fact that the condition of repurchase was embodied in a separate document will be irrelevant. Principle laid down in the case of Chandra Kanta Howladar [(1953) 5 DLR 29)] held not applicable after the incorporation of the proviso.
Abdus Sattar Mallik Vs. Yunus Mallik (1960) 12 DLR 849.
—Condition embodied in the same document—prima fade mortgage by conditional sale.
Proviso to section 58(c) of the Transfer of Property Act does not lay down any rule that if the condition is embodied in the same document, it shall be deemed to be a mortgage or there will be a presumption of a mortgage by conditional sale, shifting the onus on the other side to show that the transaction is an out and out sale.
The most important tests by which to judge whether a transaction is a mortgage or out and out sale arc(a) existence of debt, (b) the period of payment, (c) the continuance of the grantor in possession, (d) stipulation for interest on repayment, (c) the value of the property in question. (1952) 2 DLR (Dac) 443.
—Condition of repurchase or conditional sale.
In order to determine whether the documents constituted are absolute sale with a condition of repurchase or a mortgage by conditional sale subsequent conduct of the parties can be taken into consideration when some of them are not representative-in- interest of the parties to the documents. Section 92 of the Evidence Act does not stand as bar to that.
Chandra Kanta Howlader Vs. Rama Prasanna Ganguly (1953)5 DLR 29.
—The expression “such payment” in section 58(c) means payment on a certain date. Ibid.
—Sale—Out and out sale with another deed for reconveyance within a certain period of time executed simultaneously—Enforceable in law—Consideration is the mutually enforceable contract.
Shyama Pada Singha Vs. Dhirendra N Bhadra (1957) 9 DLR 439.
—Where the kabala and the ekramama were executed on the same day and at the same sitting, they formed contemporaneous agreements and the consideration for the ekrarnama was in part the execution of the kabala and the transfer of the lands thereby made. Ibid.
—Clause (C) of section 58 applicable to a mortgage by conditional sale or similar mortgages—Suit for redemption of mortgage maintainable when money has been tendered and refused.
The terms of section 58(c) of the Transfer of Property Act apply only to a mortgage by conditional sale or a mortgage of a similar nature and not to a sale or to a mortgage of any other kind, namely, a usufructuary mortgage. I hold that the aforesaid mortgages are not hit by the provisions of section 58(c) of the Transfer of Property Act.
A person interested in the equity of redemption tendered the dues within the stipulated period but on refusal by the defendant to accept the same, they were sent by money orders, which again were refused by the latter. In this context, there has been a valid tender so as to give rise to a right to institute a suit for redemption by the plaintiffs.
If the mortgage debt is paid, or a tender thereof is made, by any person interested in the equity of redemption, a mortgage suit can be instituted by any other person who has a right to the equity of redemption.
Nabin Chandra Moral Vs. Lalit Mohan Das (1967) 19 DLR 338.
—Sale or mortgage—Tests for determining—The following tests have been devised to determine whether the intention was to mortgage or to sell.
(i) the existence of a debt;
(ii) the period of repayment—a short period being indicative of a sale and a long period of a mortgage;
(iii) Possession of the property, the continuance of the grantor in possession indicating a mortgage;
(iv) existence or otherwise of a stipulation for interest on repayment indicating a mortgage;
(v) adequacy or inadequacy of the consideration, as inadequate price indicating a mortgage;
(vi) presence or otherwise of the stipulation of re-conveyance in the document itself, the stipulation of reconveyance embodied in the deed being prima facie an indication that the transaction is a mortgage; and
(vii) purchase of stamps and payment or registration costs; the same, if done by the transferee, being indicative of a sale.
Tazel Hossain Vs. Md. Affan (1965) 17 DLR 613.
—Covenant for repurchase—Personal suit by heirs.
Where the covenant for repurchase is personal the suit for re-conveyance at the instance of the heirs of the transferor is not maintainable. Ibid.
—Mortgage by deposit of title deeds— When requires registration.
A mortgage by deposit of title deeds does not require any writing and being an oral transaction is not affected by the Law of Registration. It is however usual in these transactions that such deposit of title deeds is accompanied by a memorandum in writing. The question which often arises is whether the writing was of such a character as to require registration. The decision of that question must necessarily turn upon the nature of the document itself though assistance may be had from the consideration of the surrounding circumstances.
Begum Vs. Fatimabhai, PLD 1961 (WP) Karachi 537. (Faruqui. J).
S. 58(d)—Under section 58(d), Transfer of Property Act a usufructuary mortgage creates a liability.
Tasiruddin Sk. Vs. Asaruddin Mallik (1950) 2 DLR 55.
—Usufructuary mortgage—Definition—Does not contain a personal obligation to pay debt.
According to section 58(d) of the Transfer of Property Act, where the mortgagor delivers possession of the mortgaged property to the mortgagee and authorizes him to retain such possession until payment of the mortgage money and to receive the rents and profits accruing from the property in lieu of interest or in payment of mortgage money, or partly in lieu of interest and partly in lieu of mortgage money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee. The very definition of the expression “usufructuary mortgage” as given in section 58(d) of the Transfer of Property Act indicates that the mortgagor is not personally liable for payment of the mortgage debt. If such an obligation exists in a transaction of mortgage, the mortgage would be either a simple mortgage, an English mortgage, a mortgage by deposit of tide deeds or an anomalous mortgage. In all such cases, there must be an obligation by the mortgagor to pay the mortgage debt personally; but if no such obligation is created, the mortgage, without any doubt, would be a usufructuary mortgage.
Khushi Mohd. Vs. Sultan Ali PLD 1962 (WP) Lahore 960 ‘Masud, I.)
S. 58(f)—Equitable mortgage by deposit of title deeds—Ingredients which have to be established.—No such mortgage is created with mere deposit of title deeds for advances to be made in future.
It is well-settled that in the case of a mortgage by delivery of title deeds, the debt must be proved, the deposit of title deeds has to be established and the intention that the tide deeds deposited was as a security for the rent should be made out. It is also established on authorities that a mortgage by delivery of tide deeds is not created when the deeds arc deposited before any money is advanced with a view to prepare a future mortgage, and there is no express agreement that they shall stand as security for future advances.
Tide deeds may be deposited under an oral agreement to cover present and future advance.
Subha Karam Vs. State Bank of Pakistan (7962) 14 DLR 193.
—Mortgage by deposit of title deeds with intent to create a security thereon—Letters showing deposit of title-deeds unless create a relationship between the parties in present do not require registration. Where it is found that letters showed the deposit of title-deed in the past registration not necessary and are admissible in evidence.
United Bank of India Ltd. Vs. Azirannessa Bewa (1965) 17 DLR (SC) 169.
Mortgage by deposit of title deeds— Memorandum of deposit of title deeds purporting to create in present interest in property in favour of plaintiff—Such writing constitutes contract of mortgage and not mere record of completed transaction, and is compulsorily registrable—Such writing, in absence of registration, held, not only inadmissible in evidence but also does not create any mortgage— Deposit of title deeds not independent of such writing—No right or interest, in circumstances, held, could be created in property even by deposit of title deeds.
Messrs. Eagle Star Insurance Co. Ltd. Vs. Messrs Usman Sons Ltd. (1969) 21 PLD (Kar) 123.
—Equitable mortgage—Extract from record-of-rights—Not a title deed—Cannot create equitable mortgage. The extract from the record-of-rights cannot at all be treated as a title deed, because of conveyance of the land no property in the extract, which can be obtained by any person from the survey office on payment of requisite fee, can be said to pass to the purchaser. Ibid.
—Equitable mortgage—Mortgage not proved in favour of plaintiff for want of registration of memoranduin of deposit of title-deeds—-Advance of loan and receipt thereof, however, not denied by defendant-plaintiff, in circumstances, held, entitled to money decree. Ibid.
S. 59A—Under Section 59A of the Act the heirs of a mortgagee are entitled to recover payment of the mortgage debt and enforce the mortgage in a court of law just as much as the original mortgagee. Abdus Sattar Howladar Vs. Afeluddin Chokdar (1952)4 DLR 89.
S. 60—A co-mortgagor by redeeming the mortgage in full, cannot be held by his own action to have split up the integrity of the mortgage giving a right of piece-meal redemption to the other mortgagors. There is only one condition in which the integrity of the mortgage can be said to be split up and that is provided for under section 60 of the Act, and that case is where a mortgagee has acquired the share of the mortgagor 55 CWN (3 DR) 15.
Redemption, equity of—
Rights available to the holder of the equity of redemption, when such equity of redemption is entirely unrepresented in a suit, (i) in the case of simple mortgage, and (ii) in the case of a puisne mortgage.
Hohenaddin Shaikh Vs. Esmail Sikdar (1957) 9 DLR 294.
—Where the equity of redemption was entirely unrepresented, in other words, where the holder of the equity of redemption was not made a party in a mortgage suit, neither the decree nor the sale in execution of the decree in such a suit would affect the rights of the holder of the equity of redemption. Rights which arc available to the holder of an equity of redemption are as follows:
Right of redemption—Extension of time
In the case of a simple mortgage, the mortgagor even after the mortgage retains in himself (a) right to redeem the mortgage property and (b) a right to the physical possession and enjoyment of the property;
If the equity of redemption is unrepresented in a suit, then these two rights remain vested in the holder of such equity of redemption and his right to redeem the property and to remain in physical possession thereof remains unaffected. Where there is nothing left to redeem, as for example, where the enforcement of the mortgage has become barred by limitation, the right to remain in possession must necessarily remain absolutely unaffected and free from the right of redemption.
In the case of a puisn mortgagee, it is wrong to think that he has as such puisne mortgagee any right to possession, for, as a puisne mortgagee, his rights are (a) to redeem a prior mortgage and (b) to foreclose against the mortgagor and, unless such foreclosure has taken place in accordance with law, the equity of redemption, which includes the right to possession, remains with the mortgagor.
Hohenaddin Shaikh Vs. Esmail Sikdar (1957) 9 DLR 294.
—Until and unless preliminary decree is followed by an appropriate final decree, defendants are not debarred from redeeming the mortgage, if the court extends time limited in the preliminary decree, which the court is entitled to do under the law.
Yad Ali Sk. Vs. Hazrat Ali Fakir (1954) 6 DLR 612.
—The right of redemption is governed by principle of indivisibility of the mortgage security. Neither the mortgagor nor the mortgagee can have any relief inconsistent with this principle unless there is any special stipulation in the mortgage bond or any subsequent arrangement between all the parties concerned, authorizing a departure. In the absence of such stipulation or arrangements the owner of a fragment of the right of redemption cannot redeem share unless the mortgagee or all the mortgagees, where there are more mortgagees than one, has have acquired in whole or in part the share of a mortgagor. His right is a right to redeem the entire mortgage and he can enforce this right even though the mortgagee is willing to allow him to redeem his share only.
Sm. Sabeda Khatun Vs. Nayeb Ali (1953)5 DLR 57.
—Court’s power to set aside the order for delivery of possession.
Where after the delivery of possession was taken by the mortgagee in executing a final decree for foreclosure, the mortgagor files objections to the exclusion under section 47 CPC, and asked the court, in exercise of its equitable jurisdiction, to set aside the order for delivery of possession and give sufficient time for payment of the money due under the decree.
Held: The court had no power within its equitable jurisdiction to grant relief sought. The proviso to section 60 and the provisions of Section 91, Transfer of Property Act in themselves may not be conclusive, but the provisions of Or. 34, rr.2(c) and of the Code of Civil Procedure put the question beyond doubt.
Sardar Autar Singh Vs. Sir Md. Ejaj Rasul Khan (1951)3 DLR 366.
Principle of indivisibility of mortgage Mortgagee’s right in regard to whole mortgage debt-property sold for arrears of revenue. Lands referred to in sale papers constituting only portion of mortgage lands.—original mortgagee cannot claim any mortgage rights in the remaining lands.
By a deed dated 25th May 1921A mortgages with possession of certain land in village S along with his other lands to B for Rs. 23,000. In 1935
land revenue in respect of the mortgaged land being in arrears, the mortgage rights of value of Rs. 23,000 in respect of the land in villages were put to by auction and the said rights were purchased by The sale was confirmed under section 92 of the Land Revenue Act, 1887 and a certificate to that effect was issued to C. Subsequently on 23rd August, 1939, B transferred his mortgage rights in the mortgage dated 25th May 1921 to D who sued to enforce rights:
Held: As a result of revenues sale in 1935 the of B in the full sum of Rs. 23,000 were transferred to C and nothing was left in B that could pass to D by transfer on 23rd August 1939. It could not be contended that because the mortgage rights in respect of lands in village S only were referred to in the revenue sale, the rights of the mortgage B in respect of other lands were still outstanding in B, as B could not part with his mortgage rights in respect of the whole of the mortgage debt and yet retain any part of his rights in respect of some part of the mortgage land. The position is the same whether the mortgagee sells himself or as here his rights are sold by paramount authority.
Golam Sarwar Khan Vs. Abdul Wahab Khan (1951)3 DLR (PC) 41.
Ss. 60 and 61—Plaintiff mortgagors must sue to redeem the entire mortgage and not their own share only. One of the mortgagors alone subsequently mortgaging property to mortgagee plaintiff mortgagors not bound to redeem such subsequent mortgage along with the first. (1952) PLR (Lah) 509.
S. 60—All persons interested in the equity of redemption need not be impleaded in a suit.
Section 60 of the Transfer of Property Act does not require that all persons who have a right to the equity of redemption must be joined in a suit.
In this case the suits were instituted by the original mortgagors against the original mortgagee, namely, the defendant. The original mortgagors also impleaded their transferee of a fraction of the mortgaged property as a co-plaintiff, the transfer having been made by the plaintiffs themselves. If a decree is given in favour of the plaintiffs, the mortgaged property would stand transferred to the plaintiffs.
Niban Chandra Moral Vs. Lalit Mohan Das (1967) 19 DLR 338.
—Purchase of a share in the equity of redemption whether in Court sale or by a private treaty cannot discharge mortgage debt fully.
State Bank of Pakistan Vs. Khaledar Ma (1962) 14 DLR 734.
—Tenancy right not affected because of a mortgage between the landlord (as mortgagor) and the tenant on the security of the tenanted land. The original tenancy right between landlord and tenant does not cease to exist merely on the ground the landlord mortgages the same property rented the tenant, if the mortgage money is later on paid by the landlord or a transferee of the landlord.
The disappearance of mortgage with the payment of mortgage money by the mortgagor can in no way affect the tenancy right inasmuch as the tenancy right is an independent transaction which has no relationship with the part transaction.
Noor Ahmed Vs. Md. Safi (1970) 22 DLR (WP) 39.
Equity of redemption—When extinguished by mortgagor’s default.
In this case the mortgagor defaulted to pay the arrears rent and the mortgagee was not under any obligation either in law or in contract to pay the arrear rent for which the land was sold out in the execution of a rent decree and the right of redemption of the mortgagor was extinguished. In Guari Shankor Sahu Vs. Sheotahag, AIR 1936 Patna 434 it was held that the rent sale extinguished the mortgagor’s equity of redemption when it was not proved to be fraudulent. The same view was followed in Fckua Mahso Vs. Babu Lal Sohu, AIR Patna 382. In the present case the plaintiff’s equity of redemption was extinguished for his own default to pay arrear rent and there is no evidence to show that the mortgaged property was collusively or fraudulently sold Out for any default of the mortgagee.
In the present case the mortgagee or his heirs had not undertaken any obligation to pay arrear rent for which the land was sold in a rent sale and there was no evidence to show that the suit property was sold in the execution of a rent decree because of any default or any collusion of the mortgagee or their heirs.
(Had the mortgaged property been purchased by defendant No.8 or had defendant No. 9 purchased the property in the benami of the heirs of Abdur Rashid or in collusion with them, then, by operation of section 90 of the Trusts Act, defendant Nos. I to 8 could be held responsible for holding the property for the benefit of the mortgagor and fiduciary relationship between the mortgagor and mortgagee would have subsisted and the suit would have been within time under Article 148 of the Limitation Act.
Plaintiff’s right of redemption was extinguished long ago when the mortgaged property was sold in execution of a rent decree.
Sukhendu Bikash De & anr. Vs. Nurul Islam & ors. (1979) 31 DLR 71.
S. 63—Mortgagor liable to pay cost for provident when any of the tests under the section is fulfilled. State Bank of Pakistan Vs. Khaledar Ma. (1962)14 DLR 734.
S. 64—A property can only be transferred by, a deed of conveyance—Contract of sale does not pass title to the property. Ashutosh Mali & ors. Vs. Shams unnahar & ors. (1981) 33 DLR 254.
—Transfer does not date back to the date of agreement for sale. Date on which registration of the Kabala takes place would be date for determining the status of tenancy. Ibid.
Sections 65 and 66—Mortgagor in possession, entitled to create leases
A mortgagor in possession being the owner his property is not only entitled to create leases like patni and permanent leases but may do so irrespective of their effect upon the mortgage security, provided, only that they are not wasteful or destructive within the meaning of section 66 of the Transfer of Properly Act.
The principle limiting the right of the mortgagor to alienate or create any interest with respect to the mortgaged property which is peculiar of English Law has no application to the mortgages in this country.
- Since the mortgage money in a mortgage without possession can never be fixed the right of the mortgagor to create interest in the mortgaged property must depend on the slate of the mortgage account at the moment of the creation of such interest.
Kali Prasad Chakraboruty Vs. Jitendra N Chowdhury (1952) 4 DLR 15.
S. 67—Stipulation that if money is not paid within 15 years the purchaser shall have right to foreclose—Section 67 applies.
Moulvi Ruhul Amin Vs. Bazal Huq & ors. (1979) 31 DLR 165.
—Mortgagor—When he is barred to redeem the mortgaged property.
Even in the case of mortgage by a conditional sale the mortgage does not automatically mature into sale. Section 67 of the Transfer of Property confers upon the mortgagee, any time after the mortgage money has become due to him and before a decree has been made for redemption of the mortgaged property, a right to obtain from the Court a decree that the mortgagor shall be absolutely debarred of his right to redeem the property, or a decree that the property be sold.
Hasina Begum Vs. Haji Md. Ekramullah (1982) 34 DLR 116.
—Right to redeem, in case of mortgage by conditional sale.
If the mortgage is not foreclosed and the mortgagor’s right of redemption is not debarred. So far as the right to redeem is concerned, a mortgage by a conditional sale like othcr mortgages will be governed by provisions of the Transfer of Property Act.
Hasina Begum Vs. Haji Md. Ekramullah (1982) 34 DLR 116.
S.73—The object of section 73 of the Transfer of Property Act is only to protect a mortgagee whose security has been diminished. The section does not lay down that if a mortgaged property is sold owing to failure to pay arrears of revenue or other charges of a public nature or rent due in respect of such property the only remedy of a mortgagee is to claim payment of his money Out of any surplus of the sale-proceeds. The section permits a mortgagee to take recourse to this section only when his security has been diminished on account of sale as contemplated by section 73.
Tripura Modern Bank Ltd. Vs. Khan Bahadur Khalilur Rahman (1973) 25 DLR (SC) 34.
S. 76—Mortgagee in possession is to pay rent.
Before the amendment of section 76(c) of the Transfer of Property Act the land as regards the liability of the mortgagee in possession for arrears of rent can be found in the provisions of sub-section (d) of section 65 of the Transfer of Property Act and that section was not amended by the Act 20 of 1929. That section says that the mortgagor is to pay rent if the mortgagee is not in possession. From this it can be legitimately deduced that the mortgagee in possession is to pay rent.
Alip Chand Bibi Vs. Karamwlla (1954) 6 DLR 115.
—If the mortgage of a leasehold property amounts to an assignment or transfer, the mortgagee would be liable for the rent to the landlord. Haradas Dc. Vs. Moazam Hossain (1954) 6 DLR 220.
—A sale in execution of a decree for rent against a mortgagee in possession of a lease-hold property does not affect the lessee’s right. Haradas Dc. Vs. Moazzam Hossain (1954)6 DLR 220.
S. 76(c)—Where a usufructuary mortgagee takes upon himself the burden of paying off the rent of the property under mortgage and makes the stipulation that if for any default in payment of rent the mortgage property is lost on account of sale for arrears of rent and purchased by the mortgagee or his successor-in-interest, that purchase will ensure to the benefit of the mortgagor, specially where the purchase takes place, in relation to a decree for arrears of rent for the period under mortgage.
Safayat Ali Shah Vs. Annada Pr. Roy (1955) 7 DLR 222.
—Under section 76(c) of the Transfer of Property Act, mortgagees are responsible for sale of the property in execution of a decree for arrears of rent even though they are for a period prior to the execution of the deed. (1954) 6DLR 115.
—The mortgagee in possession of the mortgaged property is bound to pay the usual rent and protect the property from the sale. If the land is sold at a certificate sale for default in payment of rents by him, it is still open to redemption by mortgagor. 6 PLR (Dac) 210.
S. 76(e)—The true rule is that a mortgagee cannot, by a mere assertion of his own or by any unilateral act of his, divest himself of his character as mortgagee and convert his possession as possession of an absolute owner.
Mesar Ali Matbar Vs. Jabbar Ali (1955) 7 DLR 103.
Ss. 76(h) and 77—The exception laid down in section 77 of the Transfer of Property Act is subject to the rule embodied in section 5 of the Assam Money Lenders (Amendment) Act, 1943 which limits die liability of the mortgagor to double the principal of the loan.
Keramat Ullah Vs. Manindra Ch. Datta (1954) 6 DLR 45.
—Refund of the excess paid.
Where there has been excess payment over double the principal, the mortgagor on the application of the rule of accounting and refund laid down in section 76(h) of the Transfer of Property Act can ask for a refund of the excess paid whether or not there was any contract that the usufruct would be set off against interest or interest and a specified portion of the principal.
Keramat Ullah Vs. Manindra Ch. Datta (1954) 6 DLR 45.
Excess of the double of the principal
In determining whether the money lender has received any sum in excess of the double of the principal of the original loan, amounts set off before the commencement of the amending Act are required to be taken into account.
Keramat Ullah Vs. Manindra Ch. Dana (1954) 6 DLR 45.
S. 82—Contribution to mortgage debt—Not against mortgagee.
Section 82 applies to mortgagors inter se and gives one mortgagor a right to have the other property contribute to the discharge of the mortgage debt. This right cannot be availed of against mortgagee or auction purchaser. 54 CWN (DR-2) 287.
S. 83—No deposit, when necessary.
Section 83 has no application when by reason of section 26 GBT Act the property is free from liability.
All that section 83 of the Transfer of Property Act says is that the amount remaining due on the mortgage may be deposited. If nothing is due, then no deposit is obviously called for.
Sm. Sabeda Khatun Vs. Nayeb Ali (1953) 5 DLR 57.
Ss. 83 and 84—Mortgage—Minor—Misrepresentation—Minor entering into mortgage fraudulently representing as to his age and subsequently bringing action for restitution of mortgaged property—Restitution of property to be ordered—Minor must, however, be made to refund consideration— Maxim He who seeks equity must do equity.
Shah Pasand Khan Vs. Hasan (1969)21 PLD (Pesh) 306.
S. 91A—Partial owner of the equity of redemption is entitled to redeem the whole mortgage.
Arab Ali and others Vs. Abdul Khaleque Prodhania & ors. (1981)33DLR 11.
S. 92—Subrogation—Insurance Company can be subrogated in the position of the insured and thereby become vested with the right of the latter to sue the person liable originally to the insured.
Trans Oceanic Steamship Vs. Issak Haji Shakoor (1960) 12 DLR 690.
‘Redeemed in full’—Explained
The words “redeemed in full” in section 92(4) do not mean that the subrogator should pay the entire amount himself. All that is required by the section is that the payment either of the entire sums Secured by the bond or such portion as may be outstanding at the time, provided it puts an end to the right to the mortgagee under the bond, and redeems the mortgage in full, will give rise to a right of subrogation. 55 CWN (3 DR) 15.
S. 95—One of several mortgagors— What connotes
Section 95 has by Act XX of 1929 been amended in such a way that sections 92 and 95 of the Act, as they now stand make it clear that the right of the co-mortgagor redeeming is the “same right as the mortgagee whose mortgage he redeems may have against the mortgagor” occurring in section 92 of the Act. “One of several mortgagors” in section 95 means one of several persons interested in the equity of redemption. 55 CWN (3 DR) 15.
—S.100—Charge—Registration of document—creating a, when necessary— Unregistered document creating a charge where the amount involved is over Rs. 100/- not admissible.
Abdur Razzak liowladar Vs. Sh. Muhammad Shaft (1960) 12 DLR 395.
—Charge as distinguished from mortgage.
A charge comes into existence when property of one person is by act of parties or operation of law made security for the payment of money to another and the transaction does not amount to mortgage.
Abdur Razzak Howladar Vs. Sh. Muhammad Shaft (1962) 14 DLR (SC) 119.
S. 101—Two mortgages held by same person—Merger of mortgages only when they are intended to be so treated.
A merger of estates takes place when two estates held in the same legal right become united in the same person. Where the capacity in which a person in possession of the mortgagee’s right is something quite different from the capacity in which he is in possession of the equity of redemption, the mere fact that the two capacities are united in the same physical person cannot result in a merger. But merger can be held to have taken place only by proving that the person in whom both the rights vest had intended to treat both the rights as one, and not otherwise. Gula Jan Vs. Sahib Gul. PLD 1963 (WP) Peshawar 1 I0=PLR 1964(2) WP 900. (Daud, J).
—Rule of merger.
Section 101 deals only with mortgages and charges; it is inapplicable to a case where a right of rcconveyancc having been reserved by a vendor, that right is subsequently sold by the vendor to the vendee but this does not necessarily mean that where see- lion 101 does not apply, the rule of merger should be applied. The section as it states makes non- merger the rule, and consequently merger an exception. (1952) PLR (Lah) 196.
S. 105—Tenant-at-will liable to pay compensation and not rent.
The designation “tenant-at-will” though gives the impression of a tenant, it lacks the incidents of an ordinary tenancy, for, a tenant-at-will is not liable to pay any rent and there being no question of demise or lease in his case he is not liable for mesne profits or damages like a trespasser because his occupation is permissive; but he is liable to pay compensation for such USC and occupation.
Rai Mohan Chowdhury Vs. Tejendra Lal Roy (1954) 6 DLR 577.
—Nowhere in the Transfer of Property Act a tenant-at-will is recognized as a lessee. Section 105 recognizes only a lease for a certain time, express or implied, that is periodic leases or leases in perpetuity. Ibid.
Sections 105 and 106—Purpose of the lease will determine whether a lease will be governed by the BT Act or the TP Act.
Where the purpose for which a lease was granted was for residential and shop purposes the main fact that part of the lease-hold was agricultural wilt not take it out of the scope of the Transfer of Property Act, the principle being that the purpose of the lease will determine whether a lease will be governed by the BT Act or the TP Act.
Ramani Mokan Mozumdar Vs. Jasodha KamarNath (1959)11 DLR 253.
—Lease—The English rule that a conveyance to operate as a lease must reserve reversion to the lessor has no application to the Transfer of Property Act.
Mohsin and Tahir Vs. Firoze Nana Ghuiam Ali (1958) 10 DLR (WP) 45.
S. 105—Lease and license—Line of demarcation.
The line of demarcation between a lease and a license will sometimes be very thin. A lease is a transfer of an interest in immovable property. Ownership of physical property consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a part of the rights of ownership.
Abdullah Bhai Vs. Ahmad Din (1964) 16 DLR (SC) 169
—The right of ownership as well as the rights of which it is composed are rights in rem and not in personam and by the lease a right in rem is transferred to the lessee. On the other hand, a “license” will appear from its definition in section 52 of the Easements Act as merely a competence to do something which except for this permission would be unlawful. It does not confer any rights in physical property. There is in the case of a license only a personal agreement between the licensor and the licensee whereby the licensor agrees not to interfere with the doing of particular acts on property which is in his possession. No right in rem passes to the licensee.
The Criterion for distinguishing between a lease and a license is simple, i.e., whether any right in immovable property itself, a right in rem, has passed to the person concerned. But the determination of this question may be difficult in the circumstances of a particular case. Where there is a document the evidence will have to be considered with due regard to the provisions of sections 91 and 92 of Evidence Act, 1872.
Abdulah Bhai Vs Ahmed Din (1964) 16 DLR (SC) 169.
—Government servant occupying Government quarter allotted to him is neither a licensee nor his possession is permissive like the possession of a tenant-at-will—He is a lessee from month to month.
Md. Aboo Abdullah Vs. Province of East Pakistan (1970) 22 DLR 392.
—Lease and license—Lease creates limited interest in immovable property which is both heritable and transferable—Licence does not create any interest in property; so it is neither heritable nor transferable.
Mianjan Ali Vs. Province of East Pakistan (1970) 22 DLR 235.
Ss. 105 and 106—The essential elements constituting a icase, arc the following; (a) the right must be one as to immovable property; (b) the right must be that of enjoyment of immovable property; (c) there must be a transfer of such right; (d) the right of transfer is an interest in property; (c) the transfer must be made for a certain time, express or implied, or in perpetuity; (1) the transfer must be one for consideration; (g) the consideration must be of the particular kind namely, premium or rent, as defined by the section, either or both of them.
Abdus Sattar & Ors. Vs. Suresh Chandra Das (1980) 32 DLR (AD) 170.
—Termination of a lease on quit notice—Right of occupation is a personal one and cannot create any interest in the land—This right ceases with the death of either of the parties and hence not heritable. Ibid.
S. 106—Lease for a manufacturing purpose—Notice to quit
A lease for the purpose of preparing ornaments being for a manufacturing purpose, is to be determined by 6 months notice under section 106 of the Transfer of Property Act.
Mohsin and Tahir Vs. Firoze Nana Ghulam Aly (1958) 10 DLR (WP) 45.
—Notice to quit—Monthly tenancy.
When a monthly tenancy commenced from a particular month, it means that the tenancy commenced from the 1st date of that month to be terminated with the last date of every Bengali month. Notice was served on the 4th of Karuck, 1351 asking the tenant to quit by the last date of the month of Kartick, 1951.
Held: The notice served was a valid and sufficient notice.
Sri Nath Bhuiya Vs. Gopal Ch. Chattopadhyay (1955) 7 DLR 56
—Notice refused by addressee— Addresses fixed with knowledge of its contents.
If a person refuses a notice, he should be affected with knowledge of it contents.
If a letter reached the other party and was refused by him, he must be affected within the knowledge of the letter which he refused to read. If the defendant has minded to satisfy the court that he got no opportunity to get the letter, it was for him rather than for the plaintiff to call evidence to prove what he asks the court to accept.
Byramji Hormosji Ghadialy Vs. Mst. Sarabai (1959) 11 DLR (WP) 165.
Monthly tenant—Holding over, has an accruing interest during every month thereafter as a tenant.
Under the Transfer of Property Act, a tenant holding any premises for a month has an accruing interest during every month thereafter springing out of the original contract and as parcel of it, and oral agreement of lease accompanied by delivery of possession is valid for the first month and thereafter the lessee continuing in possession with the assent of the lessor, expressed or implied, becomes a tenant by holding over under section 106 of the Transfer of Property Act. Therefore, a tenant holding such a tenancy has an interest for the month with an accruing interest during every month thereafter springing Out of the original contract and as parcel of it.
Such a tenancy is also transferable if allowed under the terms of the lease and under the provisions of law.
Gouri Bala Pal Vs. Kunja Lal Saha (1960) 12 DLR 37.
—On the death of the original tenant the tenancy devolves on the heirs and can only be terminated by a notice to quit. Ibid.
—A pucca building consisting of 3 rooms and the land on which the building stood and also the open space lying to the west of the building were let Out and the demised lease-hold is described as consisting of ‘niskar’ land, etc., and the ‘pucca building’ for a term of two years with the option of one renewal. The lessee failed to exercise the option of renewal and continued Lo hold the tenancy as monthly tenant. The plaintiffs determined the tenancy by 15 days’ notice to quit after the expiry of the month:
Held: The notice to quit is valid, legal and sufficient; the tenancy being a monthly tenancy 15 days’ notice was quite sufficient.
Faizur Rahman Vs. Jogendra Mohan Das (1951) 3 DLR 115.
—An ex-tenant under East Bengal Nonagricultural Tenancy Act cannot claim the benefit of service of notice.
Nihar Ranjan Pal Vs. Mst. Nurannessa Chowdhurani (1958) 10 DLR 472.
—No notice to quit is necessary as against a sub-tenant.
Sk. Md. Amir Ali Vs. Abdur Rahim (1957) 9 DLR 102.
—Notice to quit—The other incident of the tenancy which is lacking in the case of a tenant-at- will is that a tenant-at-will is not entitled to any ejectment notice as in the case of other tenants and the landlord may file an ejectment Suit straight away without serving any notice of ejectment on him. If a suit has to be filed against him, Article 139 of the Limitation Act will not apply but Article 144 will apply and this latter Article also applies to a suit against a trespasser.
Rai Mohan Chowdhury Vs. Tejendra Lal Roy (1954)6 DLR 577.
—Monthly tenant—15 days’ notice.
Where a non-agricultural land is held by a nonagricultural tenant as monthly tenant the provisions of section 106 of T.P.Act will apply and the tenant will be entitled to 15 days’ notice for the purpose of a suit for ejectment.
Bengal River Service Ltd. Vs. Sree. Muralidhar Ray (1955) 7DLR 525.
—The provisions in section 106 of the T.P.Act for 15 days notice expiring with the end of the month of the tenancy is one and the single rule of law and cannot be split up into two—one as to the length of the period of notice and the other terminating that period with the ending of the month of the tenancy.
Abdus Sattar Vs. Syed Shaha Md. Hassan Ali Quaderi (1956)8 DLR 316.
—The agreement was to the effect that three months notice will be required to be served on the tenant for vacating the premises.
Held: The agreement about three months’ notice being contrary to section 106, these provisions about 3 months’ notice is to be taken from the date of service of notice and after the expiry of three months the tenancy will terminate. Ibid.
—In terms of agreement a 3 months’ notice was served on 12.3.54 asking the tenant to vacate the house on the expiry of the 1st. day of July, 1954.
Held: This is a valid compliance with the agreement between the parties. Section 106 TP Act has no application in this case. Ibid.
—A notice to quit though not strictly accurate or consistent in its statements, may be effective, and should be construed not with a desire to find fault in the notice which would render it defective but on the principle than it is better for a thing to have the effect than be void. Ibid.
—Plaintiffs are entitled to get a decree for rent as under section 116 of the Transfer of Property Act, defendants would be held to be tenant under plaintiffs by holding over after the termination of the lease. Settlement of a new lease in favour of a third party cannot affect defendants’ right which can only be terminated by a valid notice under section 106, Transfer of Property Act.
Alimas Ullah Vs. Srish Ch. Dam (1951) 3 DLR 526; 1 PLR (Dac) 593.
—In the absence of a valid notice to quit the defendants who are tenants by holding over arc liable to pay rent. Ibid.
—Even supposing that the tenancy was terninated by a lease to a third party then also defendant, though having no lawful title, are tenants on sufferance and liable to pay rent. Ibid.
—Notice to quit on or before a date, being the date on which tenancy expires is a good notice.
In the case of a monthly tenancy where it does not appear from what date the tenancy commenced, a notice terminating the lease with the end of the month following is valid and legal.
Satish Ch. Pal Vs. Mst. Mazidan Begum (1958) 10 DLR 271.
—Notice need not contain the date of the commencement of the tenancy when evidence during trial clears the point. Monthly tenancy expires on the midnight of the 30th of each month.
Ramani Mohan Mozumdar Vs. Joshodha Kr. Nath (1959) 11 DLR 253.
—The lease in this case expired on the last day of the month. One months notice given on 3rd August, 1954, and received by the tenant on 8th August 1954, the regulating suit having been instituted on 13th November, 1954, was held in order, not only because it did not contravene section 106, but also because the suit had been instituted more than 3 months after notice ruling Out any possibility of prejudice on the score of the notice not having expired on the last day of the month of tenancy. 1956 PLR (Lah) 112.
—Denial of the title of—Forfeiture.
In a suit for ejectment by landlords the denial of the title of the plaintiff would in law result in the forfeiture of the right of the leasehold interest of the defendants. Lessees whose tenancy is terminated by notice under section 106 of the T.P. Act is estopped in an ejectment suit from setting up title subsequently acquired by them in the suit lands.
Bayza Bibi Vs. Debendra Lal Roy (1950)2 DLR 360.
—When the question is whether the lease was for dwelling purpose or manufacturing purpose.—Matters to be looked into.
In order to decide whether a tenancy has been obtained for a manufacturing purpose, one must find the actual purpose for which the lease was obtained. If a lease of some premises was obtained for the purpose of dwelling and the said premises had been used for manufacturing purpose, it cannot be held that mere’ user of the building for manufacturing purpose would make the lease a lease for manufacturing purpose within the meaning of section 106 of the said Act. Conversely, in the absence of any other evidence to the contrary, a long user for a manufacturing purpose would constitute a good circumstantial evidence that the lease was obtained for such a purpose.
Shaikh Mahmudur Rahman Vs. Amulya Kumar Sarker (1967) 19 DLR 743.
—Quit notice—After the expiry of the lease period (which provided for 6 months’ notice) period of quit notice shall be as provided by section 106.
AK Fazlul Huq Vs. Nibaran Chandra Saha (1967)19 DLR 901.
—Notice to quit—Slight inaccuracies will not render the notice invalid.
Nehar Ali Biswas Vs. Nazam Negar Rashida (1967)19 DLR 905.
—Notice to quit should be interpreted liberally and not found illegal for slight inaccuracies.
By the notice the plaintiff has directed the defendant to quit the premises ‘by the 31st December, 1960.
It was contended that the word “by” has no legal meaning but its dictionary meaning is ‘during’ and accordingly the possession of a tenant of a premises during subsistence of the tenancy is a lawful one and as such the tenant could not have been asked to vacate during the subsistence of the tenancy.
Held: The rule of construction of a notice to quit is to put upon it a liberal construction in order that it should not be defeated by slight inaccuracies on the date of the expiry of the notice. But at the same Lime the notice must be reasonably certain so that the recipient of it is not misled as to the intention of the notice-giver.
Messers Memon Trading Co. Vs. Messrs Hajee Gaffar Fiajee Habib Janno (1965) 17 DLR 677.
—Lease—Notice to vacate on or before a date being the date on which the lease terminates is a valid notice.
The landlord served a notice on the tenant (a monthly tenant) on the 1st Bhadra under section 106 of the Transfer of Property Act to vacate the premise on or before the 1St day of Aswin next.
It was contended that the notice was bad inasmuch as the defendant was asked to vacate on or before the 1st of Aswin although the lease would terminate by the mid-night of 1st of Aswin.
Held: For the fact that by the notice the defendant was asked to vacate on or before the 1st day of Aswin, it cannot be held that the notice was bad. A notice to quit on or before a date being the date on which the tenancy expires is a good notice.
Ahmadur Rahman Vs. Sheikh Mafazzal Hossain (1962) 14 DLR 826.
—Presumption of due service of notice under the section.
The question is, has the notice been served validly? It has been proved that it was sent by post to the address of the defendant and that it has come back to the plaintiff on refusal by defendant to accept service of the said notice. The postal cover under which the notice was sent bears the endorsement of the postal peon to the effect that it was refused. It is, therefore, clear that the appellate Court below has rightly held that the said tenancy was terminated by a good notice under section 106 of the Transfer of Property Act and that it has been properly served, as required by law.
Sultan Ahmed Vs. Sayed Ahmed (1967) 19 DLR 42.
—Suit for ejectment’ of tenant— Sufficiency of notice under section 106 T.P. Act determining tenancy in respect of suit premises belonging to the wakf estate in his personal capacity but he filed the suit as mutawalli of the wakf estate—
Held: Notice so served is not valid, legal and sufficient and the suit filed on its basis must fail.
Abdul Hafiz Vs. Syed Md. Kazem (1971)23 DLR 12.
—Period of notice provided in section 106— Has no application when period of such notice is mutually agreed upon. Goalundo Industries Vs. Pakistan (1970) 22 DLR 349.
—Termination of a tenancy by service of notice under section 106 of the Transfer of Property Act, does not entitle the Government to evict a tenant by the summary procedure of Act X of 1953.
The petitioners who were monthly tenants under the Government had their lease of monthly tenancy terminated by service of notice under section 106 of the Transfer of Property Act by the Government. When on demand they refused to vacate the premises, they were sought to be summarily evicted by the application of the provisions of section 5 of the Act of 1953. The petitioners then moved the High Court under Art, 98 of the Constitution of Pakistan, 1962 on the ground that invoking the summary provisions of a different Act, namely, Act X of 1953 for evicting the petitioners was wholly unauthorized in law.
Held: The petitioners as monthly tenants of the building who are not Government servants do not come within the mischief Act X of 1953 and therefore, not liable to be evicted under the provisions of the Act.
Amin Medical hail Vs. Province of East Pakistan (1970) 22 DLR 555.
—Printing and publishing business, not a manufacturing business—Type-foundry is, no doubt, a manufacturing business, but where it is just subsidiary to the printing business which is the principal business, such type-foundry cannot acquire the status of manufacturing business.
Shamsher Nessa Sakeba Bwioo Vs. Ali Mohsenuddin Ahmed (1975) 27 DLR 643.
—A wrong number given in the notice to quit issued under sec. 106 TP Act will not invalidate a suit for eviction, if the party had a clear conception of the actual subject of the suit, notwithstanding the wrong description.
Fazilatunnessa Vs. Nowshad Ali (1977) 29 DLR 315.
—Notice to quit is intended to afford an opportunity to the tenant to vacate the premises without resorting to any litigation and it is only when he refused to vacate that he can be evicted through due process of law. Ibid.
—A liberal construction should be put on notice to quit.
It is the duty of the court to put a liberal construction in order that the notice to quit is not defeated by any slight inaccuracy and the recipient is not misled as to the intention of the notice giver. Ibid.
—Monthly tenancy cannot be terminated without notice u/s.106.
In the absence of legal proof that a valid notice as required under section 106 of the Transfer of Property Act, terminating a monthly tenancy was served on the tenants, a suit for eviction of the tenant is not maintainable in law.
Mir Deiwar Hossain Vs. Joynal Abedin (1977) 29 DLR 214.
—If a tenancy is a monthly tenancy the month must either be referable to a calendar month or fixed by contract. Ibid.
—Premises at the inception taken for use as a godown—Subsequent conversion of it without the landlord’s consent for manufacturing purpose will not change its original character.
Hayatunnessa Vs. Abdur Rahman (J974) 26 DLR 342.
—In the absence of a contract or local usage a lease of immovable property for agricultural or manufacturing purpose is a yearly lease and 6 months notice is necessary. All other leases are to be deemed as leases from month to month terminable with 15 - days’ notice. Ibid.
—The tenancy (which was for manufacturing purpose) commenced on 1st Falgoon, 1362 B.S.— Notice to quit the premises by 31st Chaitra, 1382 was served u/s. 106 T.P. Act giving 9 months’ time to vacate—Defense contention was that the termination of the tenancy should coincide with the year of tenancy. Here it should be on 31st. March, 1382 (i.e. last day of the year of tenancy)
Held: In place of 6 months’ notice u/S. 106 TP Act the defendant in this case has got 9 months’ time to quit and as such notice to quit is valid in law.
Iuman Mia Vs. Zainab Bibi, wife of Haji Abdus Salam (1983) 35 DLR 351.
—Notice received by the addressee’s wife’s brother (who had been in the service of the addressee) on the addressee’s premises is a proper service as contemplated u/s 106, though he may not be regarded as a member of the family.
Hajee Khabiruddin Ahmed Vs. Md. Salam Kabir (1982) 34 DLR (AD) 271.
—Plaintiff was the tenant of the shop room under the Pourashava who transferred the same to defendant 4 with notice to the plaintiff and instructing him at the same time to attorn to defendant 4 as his landlord failing which he was required to vacate the premises—Plaintiff was further asked to clear off arrears to the Pourashava—Plaintiff did neither— Notice to the plaintiff by the Pourashava is a notice u/s.106 and on his failure to vacate the premises he was liable to be evicted.
Md. Zahir Abdullah Khan @ Zahir Abdullah Khan Vs. Abdul Latif (1983) 35 DLR (AD) 354.
—Tenancy created on payment of rent—A monthly tenancy is terminable by 15 days’ notice. The Bangladesh Premises Rent Control Ordinance says, a tenant means a person by whom, or on whose account, rent is payable for any premises, and includes a legal representative as defined in the Code of Civil Procedure, and a person continuing in possession after the termination of a tenancy in his favour. A glance at the definition along with the definition of ‘landlord’, which is nothing but the counterpart of the tenant, indicates that the definition was inserted in the Ordinance only to emphasize the tenant’s liability to pay rent and nothing more, and this meaning becomes clear when we advert to the second half of the definition of ‘tenant’, which says that it also included a person continuing in possession after the termination of his tenancy.
Abdus Satar Vs. Suresh Ch. Das (1980)32 DLR (AD) 170.
—Tenancy-at-will creates a personal relation between the original landlord and the tenant and is terminable by the death of either—Lease is created u/s. 106 TP Act. Ibid.
—Terminating a tenancy from year to year—How to be counted.
Whether the notice period of six months as contemplated in the law for terminating a tenancy from year to year under section 106 of the Transfer of Property Act must end with the expiry of the year of the lease or with the expiry of the calendar year and whether the notice terminating the tenancy, therefore, conformed with -the statutory requirement.
According to the learned Counsel, if the lease is from year to year which, in his opinion, it is, the notice to vacate should have been given six months prior to the end of the year of the lease, and not with the end of the calendar year. As the kabuliyat was registered on 9th Falgun, 1356 B.S. corresponding to February 21 1950 the period under notice should have ended on 8th Falgoon of the year in which notice was given. Instead of this, the notice which was served by registered post on 25th Aswin, 1366 B.S. asked the appellant to vacate by 30th Chaitra, 1366 B.S. As no particular date has been mentioned in the kabuliyat as to when the lease commenced, according to Mr. Khondaker, it commenced from the date of the making of the lease.
Nur Banu Vs. Noor Mohammad and others (1983) 35 DLR (AD) 182.
—Issue as to sufficiency of notice not having been raised in the courts below, the defendant can not be allowed to raise it now. Ibid.
—Sufficiency of notice—as decided by the Privy Council.
In the case of Benoy Krishna Das, (37 CWN PCi) the terms of the lease showed that the lease was “from the 1st day of June, 1921 for the term of four years thence next ensuing”. The lease ended on the midnight of 1st June, 1925. Any notice to determine the tenancy thereafter given must be a notice to quit expiring with the month ending at midnight on the first day of the month. Here, the tenants held over and notice to determine their monthly tenancy was given on 1st February, 1928. The Judicial Committee held that the notice was a proper notice under section 106 of the Transferor Property Act and it expired on the midnight of 1st March and not on the 29th of February.
Nur Banu Vs. Noor Mohammad and others (1983)35 DLR (AD) 182(183).
—Notice under section returned refused by post office—If notice is sufficient for termination of tenancy.
The question of the presumption of service through the post is obviously one that has to be decided upon the facts of each case and seeing the envelope in this case and the postal endorsement thereon, we have no doubt that we are perfectly safe in accepting the presumption that arises under section 114(c) in this particular case. Therefore the refusal of the notice under s.106 would be sufficient to terminate tenancy.
Jaffer Sultan Zaidi Vs. United Commercial Corpn. Ltd. PLD 1962 (WP) Karachi 561 (DB) (Raymond, J) [But see PLD 1963 Dacca 477 ‘DB) 1.
—Notice—plea that notice, was not proper not raised in trial Court—Not allowed to be raised in appeal.
Where the validity of notice was not challenged in lower Court but was sought to be raised for the first time in appeal.
Held: The appellant is not entitled to raise the question of the validity of the notice of ejectment at appellate stage for the first time.
Rajabali Vs. Gujrat Bus Service PLD 1961 (WP) Karachi 486 (DB) (Anwarul Haq, J).
—One month’s notice alleged to have been given to tenant to vacate premises— Notice for period less than one month— Notice is invalid.
When the allegation in the plaint was that one month’s notice had been given to the tenant to vacate the premises but it was found that the notice was for less than one month. The landlord urged that he should be taken to have given 15 days’ notice as provided under this section. The Court repelled the contention and held that as the allegation was of one month’s notice, the fact that it was for a shorter period would be fatal for the suit.
GA Jaffery Vs. Karachi Port Trust PLD 1962 (Kar) 32 (Wahiduddin, J.)
—Monthly tenancy expiring after 4 months—Tenant continuing in possession subsequently—Liable to pay rent.
Where the four months of the lease expired on 24.7.49 and the defendants continued in possession without any objection by the plaintiff. Years passed and the plaintiff claimed rent.
Held: That the plaintiff had assented to the defendants continuing in possession and, therefore, the lease must be held to have been renewed from month to month because that was the purpose of it as specified in section 106 of the Transfer of Property Act.
Zahir Ahmad Vs. Seth Sugnichand PLD 1965 (WP) Karachi 195.
Sections 106 and 107—Whether a lease is monthly or yearly, depends upon the contract.
It is not at all correct to say that there cannot be a yearly lease for the purpose of a shop. Whether lease is monthly or yearly, depends primarily upon the contract by which it was made. It is only in the absence of any contract or local law or usage that the question of its purpose arises; and the rule is that a lease for any purpose, other than for agriculture or manufacture, must be deemed to be a lease from month to month.
No doubt section 106 of the Transfer of Property Act draws a line of division between lease for agricultural or manufacturing purposes on one side and the rest on the other; but it does not interfere with the freedom of contract.
Md. Siddik Vs. Rabeya Khatun (1954)6 DLR 250.
—Reservation of an annual rent.
The reservation of an annual rent is not by itself sufficient to prove in every case that the lease is from year to year. A mere reservation of an annual rent would not make a lease from year to year unless the deed is registered or where a contrary intention is deciticible from the contract between the parties. Ibid.
—Where an annual rent has been reserved with a provision for forfeiture, fixing 30th Chaitra every year as the fatal date of default it does not show that a monthly tenancy was intended. The default of monthly installment has no adverse consequence until the end of the year and this fact is of importance, for it goes to show that the tenant is not to be disturbed even though he had failed to pay the rent until the end of the year Ibid.
Ss. 106, 107 & 110—Kabuliyat being a document executed by one party only, provisions of sections 106 & 110 will not apply to it. Nur Banu Vs. Noor Mohd. (1983) 35 DLR (AD) 182.
Ss. 106, 108—Sub-lessee or assignee of lease—Cannot be evicted without termination of lease.
Sub-lessee or assignee of lease cannot be evicted without terminating the original lease.
Kasim Vs. Chandrabahan PLD 1962 (Kar) 253 (DB). (Wahiduddin. J.)
Ss.106 and 110—Where after the expiry of the lease the tenant holds over, the notice to quit should be served considering the provisions of section 106 read with section 110 of the Transfer of Property Act.
Where after the expiry of the original lease, a tenant continues to be a tenant by holding over, then as regards service of notice to quit, the terms of the original agreement shall govern the same unless a new agreement is made. It is created quite independent of the original tenancy unless an agreement to the contrary is to be found.
Kobbat Ahmed Vs. Abdul Sabur Sawdagar (1973) 25 DLR 282.
Ss. 106 and 111(g)(e)—When the denial of title will operate as forfeiture whereby notice under section 106 dispensed with.
The denial of the title of the plaintiff in order to operate as a forfeiture enabling the plaintiff to dispense with the notice under section 106 of the Transfer of Property Act is available when the same is done on an earlier occasion prior to the filing of the suit itself.
Denial of the title of the plaintiff-landlord in the written statement of a suit is not available as a ground for forfeiture, which dispenses with necessity of serving a notice so far as is required to be provided in that suit itself though such a denial may be clearly taken advantage of for other purposes as well as in subsequent suits.
The denial of the title of the plaintiff by the defendant in this suit, however, is possible to be taken advantage of by the plaintiff on a subsequent occasion.
Ahmed Hossain Chowdhury Vs. Mst. Zakia Khatun (1968) 20 DLR 1154.
Ss. 106 and 116—Lease agreement of a premises expired—Tenant continued in possession in absence of renewal of the original lease or further agreement and the landlord accepted the rent— Holding over of such premises by the tenant will be governed not by the original lease but by the general provisions of section 106 of the Act.
Md. Rafique Vs. Md. Siddique (1970) 22 DLR 56.
Ss. 106, 117—Agricultural leases— Provisions of s.106 should not be applied rigorously unless there is notification in official gazette.
The principles embodied in section106 of the Transfer of Property Act are not to be regarded as being opposed to principles of justice, equity and good conscience, but at the same time they are not to be applied in all their rigour to agricultural leases, in the absence of a notification in this behalf under section 117 of the Transfer of Property Act.
Rajabali Vs. Gujrat Bus Service PLD 1961 (WP) Karachi 486 (DB) (Anwarul Haq, J).
Section 106
The learned Judges of the High Court Division made the Rule absolute on discussion and proper consideration of the facts and law involved in the case holding that a registered deed of lease of immovable property for 99 years could only be determined by service of a notice under Section 106 of the Transfer of Property Act, 1982 and such a lease deed can not be cancelled in part and that partial cancellation of the lease deed by the respondent No.7 for non construction of any building in the portion of the petitioners land is not justified and warranted either by the lease deed or by law. Dr. M.A. Yahia vs. Md. Abdul Quader (Md. Abdul Aziz J) (Civil)6 ADC 459
Section 106
The High Court Division held that the opposite parties in the revisional appli- cation have no possession in the ground floor as the opposite parties to the revisional application failed to show a single scrap of paper regarding their claim. Nazmul Huda Chowdhury vs. Janata Bank (M. M. Ruhul Amin CJ) (Civil) 6 ADC 569
S. 107—Lease for indefinite period— Defendant’s liability
Lease for indefinite period—Implies a life-grant unless it is otherwise from words used or conduct of parties.
Swarna Kumari Roy Vs. Sukmal Ch. Roy (1954) 6 DLR 474.
—Verbal lease for one year—Lease continues after first year with possession and landlord accepting rents—Valid tenancy, as holding over.
A verbal lease for more than one year accompanied by delivery of possession is valid for the first year and if the tenant continues in possession even after the first year and the landlord accepts rent from him, he will be regarded as a tenant by holding over.
Roshan Ali Vs. Mosammat Abedur Nessa (1962) 14 DLR 583.
—Patta executed only by lessor, void and not enforceable.
The paua in die present case was a unilateral document executed only by lessor, and not both by the lessor and the lessee. This unilateral patta offends against the provision of section 107 of the Transfer of Property Act and is, therefore, void.
Mst. Laila Begum Vs. Mst. Maleka Khatun (1968) 20 DLR 475.
—Extension of the lease without delivery of possession—Invalid.
After the termination of the original lease an extension of the lease was granted but as there was no delivery of possession accompanying the lease.
Held: Lease not valid. A lease for nonagricultural purposes for one year or less can be created either by a registered instrument or by oral agreement But such lease must be accompanied by delivery of possession as required under section 107 of the Transfer of Property Act.
Province of East Pakistan Vs. Sayed Ahmed Miyan (1968) 20 DLR 106.
—Even in a monthly lease the lessee not liable to eviction on 15 days notice, if his claim of tenancy is in respect of land.
Defendants purchased plaintiffs shop and took settlement of the land on which the shop stood and claimed a tenancy right in respect of the land by oral agreement accompanied by delivery of possession.
It was contended that such a lease other than for agriculture or manufacturing purposes shall be decumcd to be a monthly lease and the defendant is liable to eviction by 15 days’ notice.
Held: The defendant in the present case claimed his tenancy right to the land itself; so he is not liable to eviction on 15 days’ notice.
Sara Chandra Biswas Vs. Mozam Sardar (1970) 22 DLR 102.
—Unilateral lease document void for offending against provisions of section 107 of T.P. Act— Lessor and lessee respectively executed unilateral patta and kabuliyat the same day—The two documents cannot be treated as one for complying with the provisions of section 107.
As each of the documents has not been executed by both the lessor and the lessee, the lease is void.
Sheik Md. Siddique Vs. Hari Lal Nath (1970) 22 DLR 359.
—Lessor created a perpetual lease-deed in respect of some non-agricultural land in favour of lessee for —The lease-deed (a registered document) was executed by the lessor alone and not by the lessee.
Held: No valid deed is created unless the lease- deed is executed by both the lessor and the lessee.
Whether a tenancy will be governed by the Transfer of Property Act or by the Bengal Tenancy Act will depend upon the purpose for which the tenancy was created and not on the actual user of the land.
Syed Imteyazuddin Hossain Vs. Md. Abdal Majid (1970) 22 DLR 451.
—Amalnama (not registered) showing lease for 11 years—It is admissible only to show that there was a lease just for one year.
It is urged that the tenant took settlement of the fishery for eleven years from the ex-rent receiver under an Amalnama. It is, on the other hand, argued that the Amalnama (evidencing a lease of 11 years being an unregistered instrument) cannot operate to create a right in the land.
Held: Although there could not be any lease for all the eleven years in the absence of a registered instrument but there was still a tenancy for a period of one year and it has been found that the rent was paid for the first year. Hence he was a tenant for the particular year.
Province of East Pakistan Vs. Nakuldas Mirdha (1968) 20 DLR 769.
—Lease, purpose of—Lease created by an unilateral document is not hit by section 107 T.P.Act where reading the document as a whole it appears that the lease was created for agricultural purposes— Recitals to the effect that if the land remains fallow and unproductive, still the same will not be admitted as an excuse for non-payment of rent or reduction of the same and if the area of the land is found to be more on survey then the lessee will be liable for higher rent along with the stipulation that the lessee will be entitled to plant trees on the bank of the tank and rear fish therein indicate that the lease created is for agricultural purposes.
Azizur Rahman Vs. Hedayet Ahmed Chowdhury (1972)24 DLR 11.
—No need of registration of an instrument creating tenancy for a year or less although governed by the Transfer of Property Act.
Province of East Pakistan Vs. Abdul Jalil MoIla (1968) 20 DLR 1223.
—A lease-deed (10 years in the present case)— Not an agreement of lease within the meaning of section 107 of the Transfer of Property Act unless the rent to be paid by the lessee is fixed and the deed registered.
Sh. Barket Ullah Vs. Khawaja Mohammad Ibrahim, (1970) 22 DLR (SC) 419.
—Unregistered lease-deed of immovable property from year to year is inadmissible in evidence for lack of registration.
Abdul Majid Mia Vs. MW. Nabiruddin Pramanik (1970) 22 DLR (SC) 360.
—Oral lease granted—Terms of lease subsequently entered on a memo—Memo does not require registration.
Where an oral lease of property was granted and subsequently a meno in the form of a rent note was written to state the terms of the lease, and it was contended that as rent note was not registered, the lease did not materialize.
Held: It is plain from the rent note itself that lease had already been granted and in the circumstances it must follow that it was by an oral agreement accompanied by possession. Such a lease does not require to be registered as is provided by section 107, Transfer of Property Act.
Zahir Ahmed Vs. Seth Sugnichand PLR 1965 (WP) Karachi 195 (DB) (Faruqui, J).
Ss. 107, 116—Unregistered lease for more than one year—Lease operates for first year—Continuance of lease subsequent to first year by holding over must. be proved by lessee.
A lease of immovable property for a term exceeding one year, though made without a registered instrument, is valid for the first year; and if the lessee Continues to be in possession thereafter and the lessor accepts rent from him, a tenancy by holding over, from month to month or year to year, as the case may be, is created. Such tenancy must be teriminated in accordance with law before the lessor can resume possession. But the fact that there has been a lease for a year and that thereafter the lease was continued by holding over, the landlord having accepted rents, shall have to be established on evidence.
Boshirullah Vs. Province of East Pakistan PLD 1962 Dacca 126=PLR 1961 Dacca 1000 (DB) (Murshid, J).
Section 107—A patta unless executed both by the lessor and the lessee is void under section 107 of the Transfer of Property Act. A patta in order to create an interest must be executed by both the lessor and the lessee as required by this section. Where a patta was executed and registered only by the lessor the patta is void being in contravention of the provision of section 107 of the Transfer of Property Act. Therefore, the defendant No. I did not derive, any right title or interest in the land in suit on the basis of the said patta.
Narendra Nath Vs. Abdur Rahman (1974) 26 DLR 45.
S. 108—Material defect in the property
The provisions of section 108 of the Transfer of Property Act can be invoked only if the plaintiff specifics the material defect in the property with reference to its intended use. and alleges that the defendant was aware of such defect and not the plaintiff and the plaintiff would not with ordinary care discover such defect.
Hazi Abdul Karim Vs. Sk. Ali Mohd. (1959) 11 DLR (SC) 313.
—Unauthorized structure rose by tenant—Landlord cannot claim damages— Remedies.
The raising of the unauthorized structure or violation of the implied terms of the provisions of section 108, Transfer of Property Act, 1882, did not in the least entitle the landlord to claim damages unless and until it was also proved that the tenant by any of his acts had caused physical injury to the property which had resulted in some loss to the landlord. The misuse of property is one thing and wrongful use and occupation of property is another thing. The occupation or possession of a tenement can become wrongful only after the tenancy is terminated and not before that. As long as the tenancy subsisted the occupation of the tenant, in the instant case, was not that of a trespasser and no damages could be claimed from him by the landlord simply because the tenant was wrongfully making beneficial use of the demised property.
Aslam Fazal Ahmad Vs. Ghulam Muhammad PLD 1961 (WP) Kar 248 (DB) (Wahiduddin,J.)
S. 108(a)(b)_ApPlicabilit3’ of the section—Failure to deliver possession— Liability for rent.
Section 108(a)(b) of the Transfer of Property Act is applicable to an agreement for lease where it contains a term which entitles the tenant to occupy the property under it, of which specific performance could be granted.
The tenant stands in the same position as if lease has been granted to him and the landlord is bound at the request of the tenant to put him in possession of the property.
Section 108 imposes a clear obligation on the lessor to put the lessee in getting the possession of the property and he cannot avoid responsibility on the ground that the agreement stipulates that it is in the tenant’s occupation or the tenant has agreed to pay rent in advance.
Where the tenants are under agreement to pay rent in advance unconditionally from a certain date their liability to pay it continues till the time the landlord’s arc called upon to discharge their obligation of putting the tenants in possession. Any breach of section 108, Transfer of Property Act committed by the landlords at a later stage will not absolve the tenants from their liability to pay rent for the earlier period.
In cases of breach of an agreement for lease the tenant is entitled to claim damages to be assessed on the actual loss including loss of profit which the tenant had suffered on account of the alleged breach. PLR (1960)2 WP 834 (FB).
S.. 108(b)—When the lease is not valid, as not being accompanied by delivery of possession—a suit for damage against the lessor does not lie.
Province of East Pak. Vs. Syed Ahmed Mia (1968) 20 DLR 106.
S. 108(d)—Accession during the continuance of the lease
Section 108(d) of the Transfer of Property Act provides that if during the continuance of the lease any accession is made to the property such accession (subject to the law relating to alluvian for the time being in force) shall be deemed to be comprised in the lease.
Satya Sudihr Ghosal Vs. Surendra Lal (1954) 6 DLR 497.
S. 108(e)—When entire subject-matter of lease destroyed by fare section 108(e) of T.P.Act not applicable—Such case governed by general principies of law.
Golam Rahman Vs. Emaratannissa Begum (1970) 22 DLR 126.
—Clause (e) of s. 108 of the TP Act provides for instances in which a material part of a property is wholly destroyed or rendered substantially and permanently unfit for use for the purpose it is let, in which case the tenant has an option to terminate the lease. Sec. 108(c) does not deal with the case of total destruction of the subject-matter of the lease.
Azizur Rahman Vs. Abdus Sakur (1984) 36 DLR (AD) 195.
S. 108(f)—Repairs without notice to the landlord.
Section 108(f) of the Transfer of Property Act and also section 18 of the Calcutta House Rent Control Ordinance does not entitle a lessee of leasehold premises to make repairs, however, urgent the repairs may be, without giving notice to the landlord. 2 PLR (Dacc) 457.
S. 108(n)—Trustees or lessors clothed with fiduciary character—Their disability. Where a lessor reposes confidence in the lessee to fulfill the statutory obligation embodied in section 108(n) of the Transfer of Property Act truly and faithfully, there is to this extent a fiduciary relationship between the lessor and the lessee and the latter who will not be allowed to put himself in a position where his duty and his own interest come in conflict and to obtain an advantage over the lessor whom he is bound to protect by giving a timely information of the threat to his proprietary right.
Khan Bahadur Khalilor Rahman Vs. Binoy Ranjan Kanungoe (1962)14 DLR 84
—When a person puts himself in the position of a tenant under another, if the former allows to fall in arrears and then on a decree oblaincu exparte, himself (i.e., the tenant) purchases the property in the benami of some person, he puts himself in relation to his landlord in a fiduciary position and in purchasing this property (bcnami) in execution proceedings he acts in violation of the provisions of section 108(n) of the T. P. Act and thus cannot retain the benefit of his purchase.
Held: Section 108(n) of the Transfer of Property Act imposes an obligation upon the lessee to notify to the lessor of any invasion upon his proprietary rights by legal proceedings or otherwise, Dasudar, in the present case, had reposed confidence in Kanungo to fulfill this statutory obligation truly and faithfully and to this extent there was a fiduciary relationship between them which prevented Kanungo from putting himself in a position where his duty and his own interest came in conflict and to obtain an advantage over Dastidar when he was bound to protect by giving timely information of the threat to his proprietary rights.
Bejoy Ranjan Kanungo Vs. Khan Bahadur Khalilur Rahmwz (1968)20 DLR (SC) 286.
S. 108(o)(p)—Lease—Restrictive covenant—Terms of lease prohibiting construction on leased plot of land without consent of lessor— Lessor cannot unreasonably withhold sanction of proposed alteration which constitutes improvement.
Haroon E. H. Jaffer Vs. Sind Industrial Trading Estate Ltd., (1969) 21 PLD (Karachi) 227.
S. 109—Lessor transfers the property leased, rights and liabilities of the lessor.
Section 109 of the T. P. Act provides that if the lessor transfers the property leased, or any part thereof or any part of his interest therein the transferee in the absence of a contract to the contrary shall possess all the rights, and if the lessee so elects subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it. 1952 PLR (Lah) 21.
S. 110—Computation of period of a lease—Duration of the lease and its determination.
The section provides for computation of period of a lease in order to find out duration of the lease and its determination. It nowhere refers to any lease which is to conic into effect in a future date but only refers to a lease already in existence nor does it provide that in case of an agreement where date of commencement of a lease is not mentioned it will be assumed that the date would be the date of execution of the lease.
Bhagabat Ranjan Das Vs. Sidheswar Pakrashi (1957) 9DLR 533.
—When there is no mention of the date of commencement of a lease: An agreement for lease is not an instrument of lease but it is a contract to bring a lease into being in future. If there is no mention of the date of commencement of a lease in the contract, either expressly or impliedly, section 110 would not fill up the gap. Ibid.
—The expression ‘time limited’ is not applicable to a monthly tenancy.
The words “time limited” in sec. 110 of the Transfer of Property Act indicate that this provision will apply only to a lease of immoveable property where the lease is for a limited period and the period is expressed and in no other case.
A monthly tenancy is not for a limited period, but for an indefinite time subject to termination of the tenancy at the option of the lessee or the lessor.
Provisions of section 110 of the Transfer of Property Act has no application in computing the period of a monthly tenancy—and in monthly tenancy date of commencement should not be excluded but be included.
M. Salim Vs. Shaikh Abdul Latif (1962)14 DLR 186.
S. 111—Mortgagee’s interest in the mortgaged property subsists so long as the mortgagor has not been paid off—Any derivative title from the mortgagee ceases to exist with the extinction of mortgagee’s right in the property.
Hasina Begum Vs. Haji Md. Ekramulla (1982) 34 DLR 116.
—Interest as lessor is coterminous with the mortgagee’s interest. Ibid.
S. 111(c)—of the Transfer of Property Act provides that a lease of immovable property determines where the interest of the lessor in the property terminates on or his power to dispose of the same extends only to the happening of any event by the happening of such event. Ibid.
S. 111, (d)—Doctrine of merger
The doctrine of merger contained in section 111 is subject to section 2(c) which makes it inapplicable to leases created before the Act came in force.
Tajim Ali Vs. Saijuddin Khan (1954) 6 DLR 25.
—Merger of by operation of law and intention of parties.
But this does not mean that there cannot be any merger where the Act does not apply. If the Act does not apply there cannot be any merger by operation of law, i. e., by the union of the subordinate and superior interest in the hands of the same person. Ibid.
—In such a case the question whether there was a merger or not depends upon the intention of the parties. It is open to the person, in whose hands the two interest unite, to keep them apart or to sink the subordinate into the superior interest. Ibid.
S. 111(g)—Unauthorized alteration.
An unauthorized alteration of the lease-hold premises by the lessee does not Constitute forfeiture within the meaning of section 111 (g) of the Transfer of Property Act. 2 PLR (Dac) 457.
—Tenant’s assertion of higher status of the tenanted premises when does not always operate as forfeiture of his tenancy right.
If a tenant does not deny his liability to pay rent but asserts a higher status as a lessee than what is admitted by the landlord, such an assertion does not amount to denial of the landlord’s title, nor of the setting up of a title by the defendant in himself and therefore, that does not operate as forfeiture of his tenancy right.
Abdul Majid Mia Vs. MW. Nabiruddin Pramanik (1970)22 DLR (SC) 360.
S. 111(g)(2)—Penalty of forfeiture is incurred only after the defendant has ivpudiatcd the relationship of the landlord and tenant which can possibly happen (in a suit where the landlord sought ejectment of the defendant on the ground of the latter being a tenant under him) after, and not before, the defendant has filed his written statement denying the asserted relationship—As this stage of filing WS comes after the filing of the plaint, the plaintiff, perforce, is under legal obligation, if he wants to eject the tenant under section 106 of the TP Act, to serve notice as required by section 106 of the Act—Denial by the tenant in the WS may be availed of in a subsequent Suit .or other purpose.
Ahmed Hossain Choudhury Vs. Musammat Zakia Khatun (1968) 20 DLR 578.
S. 111(h)—Death of the original tenant
On the death of the original tenant the tenancy devolves on the heirs and can only he terminated by a notice to quit.
Gouri Bala Pal Vs. Kunja Lal Saha. (1960)12 DLR 37.
S. 116—Holding over—Tenants remain in possession of the lease-hold property.
The provisions of section 116 of the Transfer of- Property Act arc applicable where the tenant remains in possession of the lease-hold property after the determination of the lease granted to the tenant and his continuing in possession is assented to by the landlord. A tenant who surrenders does not come within the meaning of the words “remains in possession” of this section.
Aswini Kumar Poddar Vs. Taraj Ch. Rajbangshi (1954)6 DLR 652.
—Tenants by holding over.
Defendants’ lease of certain fisheries under the plaintiffs terminated in 1341 B. S., but they Continued their possession even thereafter. Plaintiff brought suit for rent against the defendants for the year 1342 which was decreed. In 1346 plaintiff granted a lease of the fisheries to a third party who failed to secure possession thereof from the defendants. Plaintiffs thereupon brought a suit for rent for the year 1346 to 1349 (with alternative prayer for damages for use and occupation during the period in suit). The defense was the denial of plaintiff’s title to the fisheries.
Held: Plaintiff is entitled to get a decree for rent as, under section 116, defendants would be held to be tenants under plaintiff by holding over after the termination of the lease in 1341 under the same terms and conditions.
Almas Ullah Vs. Srish Ch. Dam. (1951) 3 DLR 526.
—Lessor ‘otherwise assents to his continuing in possession”—Suing for rent held to indicate assent on the part of landlord—Lease renewed from year to year or from month to month as the case may be. 1954 PLR (Lah) 829.
—Lessee holding over after the period of lease becomes a tenant.
An agreement to lease immovable property from year toy or for any term exceeding one year accompanied by delivery of possession, in the absence of a registered lease deed, is valid for one year and if the lessee continues in possession with the assent of the lessor, the lessee becomes a tenant by holding over under section 116 of the Transfer of Property Act.
SM Lalita Roy Vs. Rafiqullah Khan (1966)18 DLR 107.
—Tenancy right by holding over.
The very fact that the tenant after expiry of the lease was allowed to remain in undisturbed possession of the land (non-agricultural land) for a long period (33 years in the present case) and that the holding comprising the suit land was allowed to stand in the municipal register in the name of the tenant without any protest from the landlord or the subsequent lessee who took lease of the land in tenure right clearly indicate that both the landlord and the subsequent lessee acquiesced in the holding over of the suit land by the tenant and after him by his heirs. Therefore, the tenant’s claim of tenancy right by holding over cannot be denied.
Mastakim Ali Vs. Shafique Uddin Chowdhury (1970) 22 DLR (SC) 395.
—Tenancy right—By open and actual possession for a long period in assertion of tenancy right the tenant acquires limited tenancy right.
Auction-purchaser, in a rent execution case started by the landlord against the tenure-holder, acquires only the right, title and interest of the tenure- holder but the tenancy right of any person in the said land remains unaffected by such auction-purchase. Ibid.
—Lessee holding over after the expiry of lease—Effect.
When a person is in possession of certain land on the basis of lease for a fixed term and continues as such in possession even after the expiry of the lease period the position of that person is not that of a trespasser but of a tenant holding over under section 116 of the Transfer of Property Act.
Banaras Co-operative housing Society Ltd. Vs. The Chairman, Karachi Development Authority (1970) 22 DLR (SC) 431.
—Holding over
Tenancy claimed by right of holding over— Claimant to conclusively prove it—Till this is done Government not called upon to prove compliance with Chapter V of Acquisition Act (XXVIII of 1951).
Province of East Pakistan Vs. Nakuldas Mirdha (1968)20 DLR 769.
S. 117—Section 117 excludes only agricultural lease.
There is no indication in section 129 restricting its application only to a particular class of las, that is, non-agricultural land, as section 23 of the Non-Agricultural Tenancy Act, 1943 has provided. Section 117 of the Transfer of Property Act excludes from its operation only agricultural leases but not other dispositions. Jabed Ali Vs. Abu Shaikh (1983) 35 DLR (AD) 31.
S. 118—If an exchange of lands is not effected by a registered instrument, that would not create any interest in favour of any party to the exchange as no valid title could be created on the basis of an oral exchange.
Jabed Ali Bepari Vs. Abdul Bari Bepari (1967) 19 DLR 192.
S. 119—Exchange of property— Provision of s. 119 applicable so long as property remains in hands of person to whom it had been given in exchange and not after he has parted with same in favour of third person—Exchange of lands between A & B—Exchange deed covenanting ‘if any loss is sustained by one party due to any factual or legal flaw in title to land, ckh would be liable for any loss sustained by the other”—Liability created by covenant, held, “personal” and not “running with land” exchanged—Provisions of s. 119, held, not attracted.
Muhammad Shah Vs. Sher Muhammad, (1969) 21 PLD (Peshawar) 103.
Secs. 122 and 123: Hindu law—Gift.
It is sufficient for a valid attestation, if the attesting witnesses received acknowledgement from the executants of the deed that he put his signature or mark on the deed though the attesting witnesses themselves did not see him do it.
Kisan Panday Vs. Nageswari Debi (1956) 8 DLR 65.
—Acceptance of a gift under the Hindu Law may be either express or implied inasmuch as there is nothing in section 122 of the TP Act to say that it must be express. Ibid.
S. 123—Rule of Hindu Law—Delivery of possession.
As regards Hindu gifts to which the Transfer of Property Act applies the rule of pure Hindu Law that delivery of possession is essential to the validity of a gift is abrogated by section 123 of that Act. A gift under that Act can only be effected in a manner provided by section 123. Ibid.
—Ss. 123, 129—Oral gift by trustees—Trust not under Muslim Law—Gift is invalid for want of registration.
Where the trustees of a Trust which was not created under Muslim Law made an oral gift of some property of the trust to another trust. It was held that the oral gift was invalid for want of registration.
Standard Vacuum Oil Vs. Mir Laik Ali PLD 1962 Karachi 727 (BD). (Qadeeruddin, J).
S. 129—Provision of section 129 is applicable to Muslims only when transferring property by gift.
Jabed Ali Vs. Abu Shaikh, being dead his heirs: Md. Naimuddin and ors. (1983) 35 DLR (AD) 31.
—S. 129 and s. 117—Section 129’s application is not to a particular class of lands. Ibid.
S. 130—The true test for determining the nature of the claim sought to be assigned should be to see that the claim when it does accrue, partakes of true character of a beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant which can be recovered by an action.
Kazi Abdul Ali Vs. Nurul Amin. (1955)7 DLR 406.
S. 135A—Subrogation. Insurance company can be subrogated in the position of the insured and thereby become vested with the right of the latter to sue the person liable.
Insurance company can be subrogated in the position of the insured and thereby become vested with the right of the latter to sue the person liable originally to the insured.
Trans Ocreanic Steamship Vs. Issak Hazi Shakoor (1960)12 DLR 690.
—In case of Marine Insurance the Insurer having paid up loss sustained by the assured and being thus subrogated to the position of the assured is entitled to sue tort-feasor ,i.e., the person who has caused the loss, in his own name.
East & West Steamship Co. Vs. Queensland insurance Co. (1964)16 DLR (SC) 61.
—Even after subrogation the insured can file a suit for recovery of damages.
Though section 135A of the Transfer of Property Act only has given right to the insurer after subrogation to sue on his own behalf but that has not taken away the right of the insured to file a Suit for and on behalf of the insurer after getting compensation from the insurer.
M. Ismail and Sons Vs. Trans Oceanic Steamship Co. Ltd. (1965)17 DLR 269.
S. 136—It is not incumbent on the landlord to call and examine the postal peon who delivered the notice at the premises of the addressee.
Haji Khabiruddin Ahmed Vs. Md. Salam Kabir (1982) 34 DLR (AD) 271.
Secs. 161 & 164—Gift of property which are capable of division.
Section 161 of the TI’ Act says that a gift of property which is capable of division to two or more persons without specifying their shares or without dividing it is invalid but it may be rendered valid if separate possession is taken by each donee of their respective portion of the property or if there is a subsequent arrangement between the donees with regard to the possession of the property. Section 164 further says that when a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void, and the gift will take effect as if no conditions were attached to it.
Monzurur Rahman Vs. Rema Tea Co. Ltd. (1981) 33 DLR 49.
Transfer of Property Matter- Pendente lite nihil innovature- ইজারা বাতিল- সম্পত্তি হস্তান্তর আইনের অন্যতম একটা মূলনীতি হলো--"Pendente lite nihil innovature" অর্থাৎ মামলা চলাকালীন মামলার বিষয়বস্তুতে নতুন কোন রাইট, ইন্টারেস্ট সৃষ্টি না করা। সুতরাং অত্র মামলায় ভিত্তিহীন, বেআইনী মৌখিক আদেশের ভিত্তিতে নতুন লীজগ্রহীতার অনুকূলে বেআইনিভাবে প্রদেয় লীজ পূর্বের লীজ গ্রহীতার কোন অধিকারকে ক্ষতিগ্রস্থ করবেনা- যথাযথ কর্তৃপক্ষের নিকট আপীল চলাকালীন সময়ে পূর্বের লীজগ্রহীতার লীজ বাতিলকরণ প্রক্রিয়া সম্পূর্ণ বেআইনী ও ভয়েড অ্যাব ইনিশিও (void ab initio)। সুতরাং এ বিষয়ে পরবর্তী যা কিছু সিদ্ধান্ত বা আদেশ হয়েছে সব কিছুই বেআইনী। এ বিবেচনায় এটা বলা বেআইনি হবে না যে নজরুল ইসলাম নামীয় লীজ বাতিল এবং তাকে উচ্ছেদ করা সম্পূর্ণ বেআইনী ও অবৈধ। সম্পত্তি হস্তান্তর আইনের অন্যতম একটা মূলনীতি হলো--"Pendente lite nihil innovature" অর্থাৎ মামলা চলাকালীন মামলার বিষয়বস্তুতে নতুন কোন রাইট, ইন্টারেস্ট সৃষ্টি না করা। সুতরাং অত্র মামলায় ভিত্তিহীন, বেআইনী মৌখিক আদেশের ভিত্তিতে নতুন লীজগ্রহীতার অনুকূলে বেআইনিভাবে প্রদেয় লীজ পূর্বের লীজ গ্রহীতার কোন অধিকারকে ক্ষতিগ্রস্থ করবেনা।
নথি পর্যালোচনায় দেখা যায় যে, ১নং প্রতিবাদী নজরুল ইসলামের লীজ বাতিল করতঃ আবেদনকারীগণের অনুকূলে লীজ প্রদান করার জন্য টি.এন.ও. কে জেলা প্রশাসক মৌখিকভাবে আদেশ দেন। জেলা প্রশাসকের মৌখিক এই আদেশ থেকে প্রতীয়মান হয় যে ১নং প্রতিবাদী নজরুল ইসলামের অনুকূলে লীজ বাতিলের আদেশটি পরোক্ষভাবে জেলা প্রশাসকেরই আদেশ ছিলো। এই আদেশের বিরুদ্ধেই ১নং প্রতিবাদী নজরুল ইসলাম যথাযথ কর্তৃপক্ষ অর্থাৎ জেলা প্রশাসক বরাবর আপিল না করে অতিঃ বিভাগীয় কমিশনার বরাবর আপিল করেন। যেখানে জেলা প্রশাসক নিজেই পরোক্ষভাবে আদেশ প্রদান করেছেন সেখানে উক্ত আদেশের বিরুদ্ধে জেলা প্রশাসকের আপীলেট কর্তৃপক্ষ হওয়ার আইনগত কোন সুযোগ নেই। সুতরাং ১নং প্রতিবাদী অতিঃ বিভাগীয় কমিশনার বরাবর ভিপি আপীল নং ১৩/৯৯ দায়ের করে মামলার পদ্ধতিগত সৌন্দর্য নষ্ট করেছেন বলে প্রতীয়মান হয়না।
অযৌক্তিক অযুহাতে ১নং প্রতিবাদীর ভোগদখলকৃত ইজারা বাতিল করে আপীলকারীগণের অনুকূলে ইজারা প্রদান করার সিদ্ধান্ত সম্পূর্ণ বেআইনি এবং ভিত্তিহীন। এমতাবস্থায় আপীলকারীগণের আনীত আপীলটি সম্পূর্ণ ভিত্তিহীন ঘোষণা করা হইলো। ... মাসুদুর রহমান (মোঃ) বনাম মোঃ নজরুল ইসলাম, [10 LM (AD) 207]
Transfer of Property Matter:- Transferred the suit land for legal necessity- Shushila transferred the suit land to Jagobandhu Shil on 28.10.1944 for her legal necessity and due to such transfer the title of the suit land vested upon Jagobandhu Shil- We have already held that Shushila transferred the suit land to Jagobandhu Shil on 28.10.1944 for her legal necessity and due to such transfer the title of the suit land vested upon Jagobandhu Shil. In such circumstances, we are of the view that the subsequent deed dated 29.04.1947 executed by Shushila in favour of the plaintiff Monmohan did not confer any title to him. Considering the aforesaid facts and circumstances of the case, we are of the view that the courts below committed error of law in decreeing the suit in respect of the land as described in the schedule to the deed dated 29.04.1947. The Courts below without properly considering the entire evidence and the laws connected thereto erroneously decreed the suit as prayed for...... Paresh Chandra Shil -VS- Kali Bala Shil, [4 LM (AD) 294]